STATE OF NEW JERSEY v. ALLEN BENOWITZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1391-04T41391-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALLEN BENOWITZ,

Defendant-Appellant.

________________________________________________

 

Submitted January 19, 2006 - Decided March 17, 2006

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Law Division, Cumberland County,

Ind. Nos. 04-04-386 and 04-03-210.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jean B. Bennett, Designated Counsel,

of counsel and on the brief).

Ronald J. Casella, Cumberland County Prosecutor,

attorney for respondent (Matthew M. Bingham,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Allen Benowitz was charged by indictment with third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1b(5) (count one); third-degree terroristic threats, N.J.S.A. 2C:12-3b (count two); fourth-degree throwing a bodily fluid, saliva, at a law enforcement officer, N.J.S.A. 2C:12-13 (count three); and third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1b(5) (count four). After a two-day jury trial, defendant was found guilty on counts two, three and four, and on count one of the lesser offense of attempt, N.J.S.A. 2C:5-1.

On September 10, 2004, defendant was sentenced on count four to a discretionary, persistent offender extended term of seven years imprisonment with three and one-half years of parole ineligibility. On count one, defendant was sentenced to eighteen months; on count two, to five years; and on count three, to eighteen months; all concurrent to the sentence on count four. Appropriate penalties and assessments were also imposed.

The events leading to these convictions arise from an altercation between defendant and several Cumberland County Sheriff's officers on November 19, 2003 in a courthouse holding area where defendant and other prisoners were being kept in anticipation of court appearances that day. At about 9:30 a.m., Sergeant Narvez received a call that defendant was disrupting proceedings in the adjacent courtroom by yelling in the holding area, which comprised the steps in the corridor outside of the courtroom. Sergeant Narvez proceeded to the holding cell and unlocked the doors to the stairwell. Upon opening the wooden door, he observed defendant sitting at the top of the steps, on the right hand side. As the Sergeant opened the door, defendant asked him, "What the fuck are you here for?" Defendant informed Narvez that he wanted to return to the jail because he had an old injury that was bothering him. Narvez testified that his intention was to transport defendant to another area of the courthouse, where defendant could be more comfortable until his case was called. Narvez instructed defendant to get up and grabbed him by the arm to get defendant up off the stairwell. However, defendant pulled away. Narvez asked defendant to get up again, and defendant started to grab at the officer's face, pulling off the Sergeant's glasses, and scratching him twice on the right side of his face. The scratch broke the skin and caused a small amount of bleeding. Narvez tried to hold defendant's head down and summon the control room for assistance. Officer Burnett, the court officer in the adjacent courtroom, came to assist him. Burnett gave Narvez handcuffs, which Narvez placed on defendant's left wrist. Defendant then stood up, the Sergeant put him against the wall, and Burnett assisted the Sergeant in cuffing defendant's right arm. During the struggle, the other inmates stayed at the bottom of the steps and did not interfere.

After defendant was handcuffed, he informed Narvez that he could not walk because of his leg injury. Narvez secured a wheelchair and pushed defendant in the wheelchair to the first floor holding cell in the courthouse, where defendant was left in the custody of Officer Kyle Leach. Narvez proceeded to the restroom to treat the scratches to his face; he did not seek medical assistance. When he left the restroom, he heard a commotion coming from the holding cell. He responded to the holding cell and observed defendant laying face down on the ground. Officer Mayhen was holding defendant's leg, and Officer Carella was holding defendant's head down. Narvez helped defendant up and placed him in a chair. The other two officers left the holding cell. Defendant was yelling that he was going to kill Officer Leach when he saw the officer. Narvez testified that there are surveillance cameras throughout the courthouse. However, the first holding cell has a limited view due to a blind spot in the stairwell.

When Officer Leach relieved Narvez, who had gone into the restroom to check on his injuries, defendant began to make sexual comments to a female inside the holding cell. Leach approached defendant and turned defendant's wheelchair to face him, preventing defendant from talking to the female. As he turned the wheelchair, defendant stated, "You are a gay ass, motherfucker, aren't you?" and then started asking, whether Leach "wanted to suck his dick?" Leach did not respond. As Leach turned his head away from defendant, defendant spit on him from a distance of approximately two to three feet. Defendant's spit struck Leach on the right side of his face, going into his right eye. After spitting, defendant started to stand up out of the wheelchair. At that point, Leach wrestled defendant to the ground, attempting to turn him over on his stomach to prevent him from spitting again. Defendant continued to struggle with Leach, striking the officer with his head and feet. Two other officers came to assist Leach in securing defendant. While defendant was struggling with Leach, he was yelling, "I am going to kill you motherfucker." Leach did not receive medical assistance for any injuries, but did receive a series of hepatitis shots and was scheduled to receive a tuberculosis test.

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

POINT I

THE DEFENDANT'S CONVICTION SHOULD BE VACATED SINCE THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF EVIDENCE. (Not Raised Below)

POINT II

THE FAILURE OF TRIAL COUNSEL TO MOVE FOR A JUDGMENT OF ACQUITTAL RENDERED DEFENDANT'S COUNSEL INEFFECTIVE IN VIOLATION OF THE FEDERAL AND STATE CONSTITUTION.

POINT III

PROSECUTORIAL MISCONDUCT PREJUDICED THE DEFENDANT AND DENIED HIM HIS RIGHT OF DUE PROCESS OF LAW. (Not Raised Below)

POINT IV

THE SENTENCE IMPOSED BY THE COURT BELOW VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS, IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

Defendant contends that the jury's verdict was against the weight of the evidence. However, defendant did not move for a new trial on that ground, as required by R. 2:10-1. Ordinarily, such a failure would preclude appellate review. State v. McNair, 60 N.J. 8, 9 (1972); State v. Brown, 325 N.J. Super. 447, 456 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000). The requirement of a new trial motion serves the important function of ensuring that we will have the trial judge's view of the evidence before undertaking our own evaluation. State v. Kyles, 132 N.J. Super. 397, 400 (App. Div. 1975).

In order to overcome the R. 2:10-1 barrier, defendant argues that his trial counsel rendered constitutionally ineffective assistance by failing to move for a judgment of acquittal, R. 3:18-1 and 3:18-2, or for a new trial. Thus, we are faced with the reality of having to address defendant's claim of insufficient evidence now, or likely later in the context of an application for post-conviction relief (PCR). Of course, if the motion counsel failed to make would have been unsuccessful, defendant could not, in any event, establish the second, or "prejudice" prong of the ineffective assistance of counsel test. State v. Morrison, 215 N.J. Super. 540, 548 (App. Div.), certif. denied, 107 N.J. 642 (1987). As a result, we determine to review the sufficiency of the evidence, notwithstanding defendant's procedural default.

We begin with the fundamental proposition that a jury verdict will not be disturbed merely because an appellate court may have decided differently upon the same evidence. State v. Afanador, 134 N.J. 162, 178 (1993). We only set aside a jury verdict if it appears there was a miscarriage of justice under the law. R. 2:10-1; State v. LaBrutto, 114 N.J. 187, 207 (1989); State v. Cook, 330 N.J. Super. 395, 419 (App. Div.), certif. denied, 165 N.J. 486 (2000). Thus, we review the evidence "to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982), cert. denied sub nom., Rafferty v. Carter, 484 U.S. 1011, 108 S. Ct. 711, 98 L. Ed. 2d 661 (1988); State v. Reyes, 50 N.J. 454, 458-59 (1967).

Defendant attacks the State's evidence, coming through the testimony of the several Sheriff's officers, as being internally inconsistent, as well as inconsistent with statements the officers made in contemporaneous reports. However, notwithstanding defendant's passionate argument, we have no doubt that the evidence, which the jury apparently believed, was sufficient to support a guilty verdict on each charge. The State's review of that evidence in its appellate brief is compelling:

Count I - Criminal Attempt (Attempt to Cause Bodily Injury to Kyle Leach)

The testimony established that the defendant had spit at Officer Leach striking him in the right eye. The defendant then attempted to stand up at which point Officer Leach attempted to restrain him. The defendant began to kick his feet and throw his head backwards striking Officer Leach in the leg, head and shoulders. Officer Leach subsequently underwent testing for exposure to hepatitis.

The jury could easily conclude that the flailing of the defendant's head and kicking, not to mention the spitting that resulted in the victim having to undergo testing for hepatitis was an attempt by the defendant to cause bodily injury to Officer Leach.

Count 2 - Terroristic Threats

The testimony of Officer Leach established that the defendant threatened to kill him. The jury had the ability to witness his testimony and clearly found his testimony to be credible.

Count 3 - Knowingly Subjecting Officer Leach to Bodily Fluid

Officer Leach testified that the defendant spit on him. The saliva struck Leach on the right side of his face. The jury clearly found the testimony of Officer Leach to be credible and believable. A determination that should be given deference due to the jury's ability to observe the witnesses demeanor while he was testifying. State v. Johnson, 42 N.J. 146, 157 (1964).

Count 4 - Aggravated Assault on Law Enforcement Officer

Officer Narvez testified that the defendant pulled off his glasses and scratched Officer Narvez in the face. The scratch broke the skin. Officer Burnett also testified that Narvez had suffered "facial scars" during his altercation with the defendant. Officer Leach testified that he observed scratch marks on Officer Narvez's face.

Accordingly, we reject defendant's argument that the evidence was insufficient to withstand a motion for judgment of acquittal or that the verdicts were against the weight of the evidence. As noted earlier, we have no need to address defendant's ineffective assistance of counsel claim.

Defendant argues that "the prosecutor improperly interjected his own opinion into the trial proceedings, thus adding to a debatable issue the weight of his official authority and the impression that he had inside knowledge." Specifically, defendant points to the following statement in the prosecutor's summation:

Now ladies and gentlemen, I don't know how much of the behavior you're supposed to ignore, I don't know how much you're supposed to just put up with, because you're a sheriff's officer. I submit to you, you shouldn't have to put up with any of it and I submit to you also, as a sheriff's officer, that they did what they could to rectify the situation. They did what they could to get Mr. Benowitz where he needed to be, as easy for him as they could and they were met with obstinance, contempt, disrespect and about everything else you can name from Mr. Benowitz.

He assaulted them, he spit on them, he threatened them. That's what he did. And Officer Leach also testified that he's getting tested and I submit to you that an Officer is not going to go through getting shots and getting tested unless he was spit on, what's the purpose of that, why would he do that.

The remark was not the subject of objection at trial on the basis of personal opinion, thereby requiring review under the plain error analysis, R. 2:10-1. However, we need not resort to plain error to reject this argument. While it is unquestionably true that a prosecutor may not state or imply his or her personal belief as to the guilt of the defendant or the truth or falsity of any evidence, State v. Marshall, 123 N.J. 1, 154 (1991), no such impropriety took place here. As the State says, the summation "was entirely proper. It did not imply any inside knowledge that was not available to the jury and was a legitimate and forceful argument on behalf of the State's position." This is one of those instances where it can truly be said that defense counsel's lack of objection reflected a contemporaneous belief that the remarks were acceptable. State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Defendant attacks his sentence on two separate grounds. First, he argues that the imposition of a discretionary extended term, based on the judge's finding that he was a persistent offender, N.J.S.A. 2C:44-3a, and that such a term was necessary for the protection of the public, State v. Dunbar, 108 N.J. 80, 90-91 (1987), violated the precepts of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Here, the judge imposed the extended term after a careful analysis under Dunbar, and we perceive no error in that determination. The application of Blakely in State v. Natale, 184 N.J. 458 (2005) (Natale II) and State v. Abdullah, 184 N.J. 497 (2005) does not apply to the discretionary extended term decision. State v. Young, 379 N.J. Super. 498, 509-10 (App. Div. 2005).

However, since Natale II eliminated presumptive sentences, defendant is entitled to be resentenced without regard to the presumptive term. As a result, we have no need to address defendant's excessive sentence argument.

Conviction affirmed; remanded for resentencing.

 

Defendant did object on the ground that the comments were inflammatory.

(continued)

(continued)

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A-1391-04T4

March 17, 2006