STATE OF NEW JERSEY v. MANUEL ESCALIANTE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2943-05T32943-05T3F

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MANUEL ESCALIANTE,

Defendant-Appellant.

________________________________________________________________

 

Argued October 31, 2006 - Decided December 21, 2006

Before Judges Kestin, Payne and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Ind. No. 04-12-1788.

John R. Klotz argued the cause for appellant.

Steven E. Braun, Chief Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Braun, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction after a jury trial for third degree resisting arrest, N.J.S.A. 2C:29a(1), and third degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a). Defendant was sentenced to a three-year prison term on each count to run concurrently. We affirm.

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

POINT I

THE TRIAL COURT IMPROPERLY ALLOWED THE STATE TO INTRODUCE THE CIGARETTE LIGHTER GUN ALLEGEDLY FOUND IN DEFENDANT'S HOLDING CELL IN VIOLATION OF HIS FOURTEENTH AMENDMENT DUE PROCESS AND STATE RIGHT TO A FAIR TRIAL.

POINT II

THE TRIAL COURT IMPROPERLY BARRED THE CROSS-EXAMINATION OF OFFICER LANE AS TO HIS KNOWLEDGE THAT OFFICER TORRES HAD DETAINED [A] HISPANIC AND BLACK MALE IN THE BAR'S PARKING LOT IN VIOLATION OF DEFENDANT'S SIXTH AMENDMENT AND STATE CONSTITUTIONAL RIGHTS.

POINT III

THE TRIAL COURT IMPROPERLY BARRED THE CROSS-EXAMNATION OF OFFICER TORRES REGARDING HIS FAILURE TO OBTAIN A WITNESS'[S] NAME IN VIOLATION OF DEFENDANT'S SIXTH AMENDMENT AND STATE CONSTITUTIONAL RIGHTS.

POINT IV

THE TRIAL COURT IMPROPERLY BARRED DEFENDANT'S REQUEST THAT THE POLICE REPORTS OF OFFICER CARLOS TRUJILLO BE ADMITTED INTO EVIDENCE IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS.

POINT V

THE TRIAL COURT ERRED BY REFUSING ACCESS OF OFFICER TORRES'[S] PERSONNEL FILE TO DEFENSE COUNSEL IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS.

POINT VI

THE TRIAL COURT ERRED BY SUPPLEMENTING THE JURY INSTRUCTION ON AGGRAVATED ASSAULT WHILE RECHARGING THE JURY IN VIOLATION OF DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS (NOT RAISED BELOW).

POINT VII

THE TRIAL [COURT] ERRED BY INCORRECTLY SUMMARIZING THE DIFFERENCE BETWEEN AGGRAVATED ASSAULT AND SIMPLE ASSAULT DURING THE RE-CHARGE TO THE JURY IN VIOLATION OF THE DEFENDANT'S DUE PROCESS AND STATE CONSTITUTIONAL RIGHTS.

POINT [VIII]

THE TRIAL COURT ERRED IN REFUSING TO GRANT DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND THEREAFTER BY PERMITTING THE STATE TO AMEND THE VICTIM'S NAME IN THE INDICTMENT IN VIOLATION OF DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS AND STATE CONSTITUTIONAL RIGHTS.

POINT IX

THE TRIAL COURT ERRED BY APPLYING A PRESUMPTION OF IMPRISONMENT FOR A THIRD DEGREE OFFENSE.

We recite the facts in the record relevant to this appeal. On August 28, 2004, at approximately 1:30 a.m., Passaic County patrol officers, Joseph Crisostomo, Jason Lane, and Enrique Torres received a radio call requiring units to proceed to the area of Passaic and 3rd Streets to search for a suspect described as a "Hispanic male," wearing "a blue shirt and a blue or black baseball cap with white stripes," who was "in possession of a handgun." Responding to the designated area, Officer Lane spotted defendant, who fit the suspect's description, standing outside the Jaguar Bar. Defendant proceeded inside the bar. Officers Lane and Crisostomo followed and approached him. While shining his flashlight on his badge, Officer Crisostomo identified himself as a police officer and tapped defendant's elbow, asking him to step outside for questioning. Officer Lane then observed defendant raise his hands and strike Officer Crisostomo. Officer Crisostomo attempted to restrain defendant, while Officer Lane went to seek help from Officer Torres, who had remained outside the bar.

While the encounter occurred in the bar, a security guard standing outside the bar directed Officer Torres to two men in the parking lot, near a dark sports utility vehicle (SUV). Officer Torres approached these men, who, upon noticing the officer, began to run towards the SUV. Officer Torres was about to detain one of the men when he heard Officer Lane calling for his help.

Inside the bar, Officer Crisostomo continued the struggle with defendant, repeatedly identifying himself as a police officer and stating defendant was "under arrest." Defendant refused to submit. After Officer Lane called for Officer Torres's assistance, he returned his attention to the altercation and saw Officer Crisostomo and defendant "entangled" and "falling to the ground." Defendant landed on top of Officer Crisostomo, and "continued to struggle and punch and kick and everything else." Both Officer Lane and Torres observed defendant attempt to put one hand into his "beltline" or "waistline," as if "to try to retrieve something." Officer Lane repeatedly struck defendant in the head with his flashlight in an effort to subdue him.

Ultimately, Officers Lane and Torres pulled defendant off Officer Crisostomo and physically restrained and handcuffed him. Officers Gabriel Guzman and Carlos Trujillo arrived to assist.

As a result of the altercation, Officer Crisostomo badly injured his left knee, severing a tendon. He was taken to the hospital and underwent immediate surgery to repair the injury. Defendant was also taken to the hospital by Officer Trujillo for treatment of his head injuries. When released, defendant was processed by Officer Trujillo at the Passaic Police Department, which included, among other procedures, defendant emptying his pockets, removing his belt and shoe laces, submitting to a pat-down and entering the holding cell. Prior to placing defendant in the holding cell, Officer Trujillo testified he checked inside the cell for any unauthorized items and found none.

As he completed paperwork for defendant's processing, Officer Trujillo approached the holding cell and observed "something inside the tissue holder" adjacent to the metal bed where defendant was lying. The object was a cigarette lighter resembling a small handgun.

During a pre-trial conference, the trial judge initially precluded the State from referencing the content of the dispatch call and the cigarette lighter-gun found in defendant's cell. Thereafter, during opening statements, defense counsel referred to content of the dispatch call; that the police were looking for a Hispanic man with a gun, and wrongfully targeted defendant. The trial judge later admitted the cigarette lighter-gun as relevant to the officers' state of mind.

"In general, a trial court is afforded 'considerable latitude regarding the admission of evidence,' and is to be reversed only if the court abused its discretion." State v. Nelson, 173 N.J. 417, 470 (2002) (quoting State v. Feaster, 156 N.J. 1, 82 (1998)). Our review discloses the trial judge did not misapply his discretion in making the evidentiary ruling to admit the cigarette lighter-gun. Defense counsel chose to disclose the content of the dispatch call to support the theory that the officers acted overzealously and wrongfully targeted defendant. Advancing this theory raised the issue of the officers' state of mind when entering the bar and placed the cigarette lighter-gun into the ambit of relevant evidence. Thus, admission of the cigarette lighter-gun into evidence was not "so wide of the mark that a manifest denial of justice resulted." State v. Marrero, 148 N.J. 469, 484 (1997).

Similarly, we find no misapplication of discretion in the trial judge's decision to bar cross-examination on the basis of hearsay statements. Contrary to defendant's argument, this was an evidentiary ruling which did not compromise defendant's right of confrontation. See Delaware v. Fensterer, 474 U.S. 15, 20 106 S. Ct. 292, 294, 88 L. Ed. 2d 15, 19 (1985).

Defendant next argues the trial court erred in denying his request to admit into evidence the written police reports completed by Officer Trujillo, regarding defendant's processing and the discovery of the cigarette lighter-gun, which deviated from the officer's trial testimony. Although the police reports could have been admitted into evidence as a business record, N.J.R.E. 803 (c)(6), see also State v. Burris, 357 N.J. Super. 326, 337 (App. Div. 2002), the court has broad discretion "under N.J.R.E. 403 to exclude otherwise admissible evidence where its probative value is substantially outweighed by the risk of undue prejudice, confusion of issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence." State v. Dreher, 302 N.J. Super. 408, 496 (App. Div. 1997). During the extensive cross-examination of Officer Trujillo, defendant thoroughly explored the inconsistencies between the written report and the officer's direct testimony. We therefore discern no prejudice resulting from the trial court's exercise of discretion.

Finally, defendant challenges the trial court's response to the jury's inquiry after being charged. The jury sent a note stating: "Can we have [the] definition of aggravated assault and definition of simple assault [again]?" The trial judge repeated the original charge on aggravated assault and simple assault and then added:

Now, you will notice the definition I've given you the only difference is that in a simple assault[,] you have to find the defendant did not know that Robert Crisostomo was a law enforcement officer. Okay. That[,] is the difference . . . . So you see, the elements are the same.

Defendant's contention that this statement constitutes plain error is unsupported. R. 2:10-2. Reviewing the charge in its entirety, see State v. Torres, 183 N.J. 554, 564 (2005), the added statement simply provided clarification of the elements of simple assault and aggravated assault and did not rise to a "legal impropriety . . . prejudicially affecting the substantial rights of the defendant" with the capacity to bring about an unjust result. State v. Hock, 54 N.J. 526, 538 (1969).

The remaining arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-2943-05T3F

December 21, 2006