STATE OF NEW JERSEY v. SYHEI McKINNIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0969-04T40969-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SYHEI McKINNIS,

Defendant-Appellant.

 

Submitted: May 8, 2006 - Decided June 8, 2006

Before Judges Fall and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment Number 04-01-0004.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Syhei McKinnis appeals from his conviction on a charge of second-degree aggravated assault, and from the sentence imposed. We affirm.

Defendant was charged in Warren County Indictment Number 2004-01-0004-I with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), on or about August 10, 2003, in the Borough of Washington, by attempting to cause and/or purposely or knowingly cause serious bodily injury to Jason Fox.

The matter was tried non-jury in the Law Division before Judge John H. Pursel on June 14, 2004. After considering the testimony, the judge found defendant guilty. At sentencing on August 13, 2004, the judge imposed a seven-year term of imprisonment, subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Applicable mandatory fines and penalties were also assessed, as was restitution.

The evidence adduced by the State at trial, if credited, disclosed the following. The charge against defendant arose from an incident occurring on August 10, 2003, at approximately 2:00 a.m., in the parking lot of a Quick Check convenience store in Washington Borough. The victim, Jason Fox, had driven his vehicle to the Quick Check store with passengers Jacqueline Stewart and Brandy Garrecht to purchase drinks and snacks.

Stewart testified that she used to "hang out" with defendant, but had essentially ended their friendship about eight months previously. Stewart stated that about a week prior to the August 10 incident, she did go to defendant's house and "we were just hanging out." Two or three nights later, Fox drove Stewart and Garrecht to defendant's home so Stewart could retrieve a movie she had left there. When Stewart and Garrecht went to the front door, with Fox remaining in his car, defendant yelled at them and "kept turning on and off the lights and then told us to wait off his property." Stewart explained the incident, as follows:

So we waited out by his car and he gave the tape back to me. He asked [Fox] to move his car. [Fox] didn't move the car right away. So when we did move the car [Fox] skidded out on the side, over [on] Taylor Street I think it's called. And we were just -- [Fox] started driving around and people were like, were . . . at the end of the blocks and throwing rocks at [Fox's] car and stuff like that.

Stewart stated that during that incident Fox and defendant were yelling vulgarities at each other.

The next time they saw defendant was on August 10 at the Quick Check parking lot. When they exited Fox's vehicle, intending to enter the store, Stewart could hear defendant from the other side of the parking lot yelling something at Fox, who then entered the store with Garrecht. Stewart testified that defendant appeared angry, so she went over to where defendant was standing to speak with him and to apologize for the incident that had occurred a few nights earlier. Defendant informed Stewart that Fox was lucky she was with him because, otherwise, "he would beat [Fox] up." Stewart then also went inside the store.

When Fox, Stewart and Garrecht exited the store, defendant was standing by Fox's vehicle, directly in front of the driver's side door, preventing Fox from re-entering his vehicle. Defendant was upset and agitated. Stewart described what happened next, as follows:

[Defendant] said something to [Fox], I'm not clear on what he said. And [Fox] said calm down, you know, just let me get in my car and leave. And [defendant] punched him. [Fox] got back up and he is like, whoa, I'm sorry, man. And [defendant] said call yourself a pussy and I won't hit you. And [Fox] didn't say anything. So [defendant] punched him again.

Stewart stated that Fox never raised his hands to defendant, nor threatened him in any way, and that defendant had struck Fox twice in the jaw with a closed fist, causing Fox to fall to the ground. Garrecht testified similarly.

As a result of defendant's blows, defendant's jaw was severely fractured in two places. The first fracture caused the jaw bone to protrude through the gum and the second fracture caused the jaw to collapse. The fractures required hospitalizations, surgeries, and resulted in pain and suffering, and permanent injuries in the form of residual numbness in the chin area of his jaw, neck pain, and occasional headaches.

Fox testified that immediately following the incident he was hospitalized for two days and underwent surgery to set his jaw and wire it shut. When asked whether he had to undergo further treatment, Fox stated:

Yes, sir, many follow-up visits, to have the wires checked and retightened. Follow-up x-rays. And then another visit six and a half weeks after that to have the bars removed, which were sown through my gums around my teeth, steel wire.

Fox explained it as a "very painful" experience. He testified that he still has numbness in his chin, "more to the left side due to when the bone broke on the left side[,]" making it hard to shave, and "[i]t can be painful actually." Fox stated that he also has residual neck pain and headaches from the impact of the blows struck by defendant. The hospital records were stipulated into evidence.

Defendant produced no witnesses. After counsel delivered their summations the trial judge made the following findings, in pertinent part:

When a person intentionally strikes somebody in the jaw they don't do that by mistake. They do that because they want to. There is no question in my mind that [defendant] did exactly what he wanted to do. There's no mistake involved. It was an intentional assault and unprovoked, as I said.

I reviewed the medical records. I reviewed the testimony of the witnesses to this incident. I find all the testimony credible. I find the act was done knowingly with the purpose to injure the victim.

The only problem which I am faced with, that I have gone through the text as best I can, and there is no table which the court can follow as to what serious bodily injury is and what a protracted loss of a bodily function is. Six weeks, six and a half weeks, . . . a month and a half. Is that a protracted loss of a bodily function? . . .

A lot of the injury has been defined in numerous fashions. A sore leg, hip, chest, elevated blood pressure, all caused by an impact between a thief and a bystander. Slap in the face. Physical discomfort, being kicked or physical confrontation. Obviously, State v. Sloane, [ 111 N.J. 293 (1988)], the loss of an arm or an eye, you don't need a jury to figure that one out, are inherently so serious and the jury need not be given the option of finding a lesser included offense, which is the third-degree offense of bodily injury versus serious bodily injury, a serious crime.

The court finds that there was an injury, that is, the compound fractures of the jaw. The court finds that it did not, however, present a risk or death, nor serious permanent disfigurement. That the injury was caused knowingly and intentionally by the defendant. And at six and a half weeks [to] have your jaw wired shut because of the assault by the defendant does represent a protracted loss or an impairment to a bodily function, member or organ of the jaw, the mouth.

The court, therefore, finds that the State has proven to its satisfaction beyond a reasonable doubt that this defendant knowingly and intentionally inflicted serious bodily injury upon the victim by causing a protracted loss or impairment of the function of any bodily member or organ for a period of at least six and a half weeks. Therefore, it is a finding of guilty as charged.

On appeal, defendant presents the following arguments for our consideration:

POINT ONE

THE COURT ERRED IN NOT CONSIDERING SIGNIFICANT BODILY INJURY AS A LESSER INCLUDED OFFENSE.

POINT TWO

THE WEIGHT OF THE EVIDENCE PRESENTED DOES NOT SUPPORT THE VERDICT.

POINT THREE

THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ALLOWED THE INTRODUCTION OF HEARSAY EVIDENCE VIOLATING THE DEFENDANT'S RIGHT OF CONFRONTATION UNDER THE FEDERAL AND STATE CONSTITUTIONS (Not Raised Below).

POINT FOUR

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Defendant first argues that the court erred in convicting him of the second-degree aggravated assault charge contained in N.J.S.A. 2C:12-1b(1). Specifically, he contends that the evidence did not support a conclusion, beyond a reasonable doubt, that the victim had suffered "serious bodily injury," and that the trial judge erred in failing to consider the lesser-included offense of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), because the evidence supported the conclusion that the victim had suffered "significant bodily injury."

N.J.S.A. 2C:12-1b(1) states that a person is guilty of second-degree aggravated assault if he:

(1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]

[Emphasis added.]

The phrase "serious bodily injury" is statutorily defined as

bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]

[N.J.S.A. 2C:11-1b.]

The phrase "significant bodily injury" is defined as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1d.

After analyzing the record in the light of the arguments advanced by the parties, we conclude that defendant's argument is without merit. The trial judge specifically considered the lesser-included offense of third-degree aggravated assault but rejected it, finding that the victim had sustained "serious bodily injury." The judge found that the victim sustained two severe fractures of the jaw, which required his jaw to be wired shut for more than six weeks, and that the victim suffered significant permanent residuals from the injury in the form of numbness in his chin and neck pain. The judge's conclusion that these injuries constituted a "protracted loss or impairment of the function of any bodily member or organ[,]" N.J.S.A. 2C:11-1b, is fully supported by these findings. There is no merit to the contention that Fox only suffered a "temporary" loss of either a bodily member organ or of one of the five senses. Rather, the evidence supports the conclusion that the numbness, neck pain, headaches and jaw injuries are permanently disabling in nature.

We also find no merit in defendant's contention that the court erred because the victim's testimony concerning his injuries constituted inadmissible hearsay. That argument was not advanced at the time of trial, thereby invoking our plain-error standard of review. See R. 2:10-2. More significantly, defense counsel stipulated to the admission of the victim's hospital records, which include statements concerning his treatment and the nature of the injury.

Lastly, defendant argues that the sentence imposed was excessive. We disagree. After reviewing defendant's significant prior record of juvenile and adult offenses, the judge found the presence of aggravating factors N.J.S.A. 2C:44-1a(3) ("[t]he risk that defendant will commit another offense"); N.J.S.A. 2C:44-1a(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); and N.J.S.A. 2C:44-1a(9) ("[t]he need for deterring the defendant and others from violating the law"). The judge further found there were no mitigating factors. We conclude that these findings are supported by substantial credible evidence contained in the record, and the judge applied correct legal principles in exercising his sentencing discretion; moreover, the term imposed does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 363-64 (1984).

Affirmed.

 

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A-0969-04T4

June 8, 2006