STATE OF NEW JERSEY v. HOWARD BONDURANT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-29453929-04t5-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HOWARD BONDURANT,

Defendant-Appellant.

____________________________

 

Submitted February 7, 2006 - Decided March 21, 2006

Before Judges Collester and Lisa.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, 03-03-0431-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Philip Lago, Designated Counsel,

of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent (Dawn K. Scala, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Howard Bondurant is a resident of the Special Treatment Unit (STU) housed in the Kearny facility as a result of an involuntary civil commitment pursuant to the terms of the Sexually Violent Predator Act (SVPA). N.J.S.A. 30:4-27.24 to -27.38. On March 11, 2003, he was indicted on four counts of aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(5)(a), three counts of aggravated assault contrary to N.J.S.A. 2C:12-1(b)(2), three counts of resisting arrest, contrary to N.J.S.A. 2C:29-2(a), two counts of unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) and two counts of possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d). Tried to a jury, defendant was found guilty of the lesser-included disorderly persons offense of resisting arrest as charged in three counts of the indictment. He was acquitted on the remaining counts. Sentenced on October 7, 2004, to a concurrent sentence of six months on each of the disorderly persons convictions, defendant appeals his conviction and sentence.

The incident giving rise to the charges against defendant occurred on October 19, 2002, at the Kearny STU. Corrections Officer Adam T. Jovic testified that prior to that date he had testified at an institutional hearing that defendant had assaulted another officer, which resulted in defendant being punished by being locked up in the restrictive activities program (RAP) area for a period of time. At about 9 p.m. on October 19, 2002, Officer Jovic was in the day room when defendant yelled at him, "I'm going to fuck you up for lying on me in court. You should have been the one I fucked up before. Every chance I get, I'm going to write your ass up." Defendant then "stormed off" to his room. Jovic reported the incident to his superiors, and he was instructed not to have further contact with defendant. All inmates were then ordered to return to their cells. Corrections Officers Anton Yanni, James Sanchez and Lieutenant Vincent Tedesco went to defendant's cell to transfer him to the RAP area because of the threat to Officer Jovic. When they arrived, defendant cursed at them and said he was "not going anywhere." According to the State's testimony, defendant threw a typewriter at Lieutenant Tedesco, stabbed the officers with a pen when they were placing him in handcuffs and bit Officer Sanchez's knuckles. Defendant was then taken to the nursing station for evaluation of injuries received in the struggle.

Nurse Kathleen Guyton testified that she examined the two injured corrections officers and the defendant. She said Officer Yanni was bleeding from his ear from a puncture wound which required suturing. He also reported upper and lower back pain, pain in the right ankle and scratches and bruises. He was treated with painkillers and muscle relaxants. Officer Sanchez had a wound on his right hand as well as pain in his neck, left shoulder and rib cage. He was also treated with pain medication. She added that defendant had a "red spot" on his forehead and redness on his wrists from the handcuffs.

The defense witnesses were residents at the STU. Paul Holmes testified that he was in his cell during the lockup and heard raised voices coming from defendant's cell. He saw two officers rush into defendant's cell and throw the defendant on his back. He said the defendant did not have any opportunity to throw a typewriter or stab the officers with a pen because the officers were holding him down while he struggled. The officers then carried defendant out of his cell and down the hallway. Holmes said that minutes later officers returned to defendant's room and vandalized his personal property by stepping on his typewriter, PlayStation machine and cassette player.

Michael Bordo was a resident in the same unit. He testified that he saw officers gather at defendant's cell and heard defendant protest that he did nothing wrong and call out, "You're going to break my fucking wrist." Bordo said defendant was dragged out of the cell in handcuffs and appeared to be unconscious. Bordo also corroborated Holmes' testimony that two officers returned to defendant's cell and smashed personal property.

The defense next called Tony Riddles, an STU inmate whose cell was next to the one defendant occupied. Riddles said that earlier in the day the defendant had threatened to "write up" officers who were watching television in the recreation room. Later Riddles saw five officers go to defendant's room to speak with him. They left but returned with other officers several minutes later. The residents were then ordered to lockup, and officers then began arguing with defendant. Riddles heard the sounds of a fight and saw defendant being dragged down the hallway.

The defense then called Investigator Denise Cole of the Public Defender's office. She testified that she visited defendant on October 21, 2002, after receiving a report that he had been assaulted by corrections officers. She took pictures of defendant to show bruises on his neck, the left side of his face, his wrist and right shoulder as well as to the back of defendant's ear. The pictures also show defendant wearing a blood-stained tee shirt which had a footprint on it.

Defendant testified on his own behalf that he was in the day room at approximately 9 p.m. when he asked Officer Jovic if he could change the television channel. Jovic refused because he was watching a baseball game. Defendant said he told Jovic that he would write him up since staff was not allowed to watch the residents' television. When defendant returned to his cell, he begin writing out a grievance. Several officers entered and asked why defendant was harassing Jovic. After defendant denied harassment, the officers left only to return later to tell defendant he was being taken to RAP lockup. Defendant denied making any threats to the officers but did admit saying he was not going to lockup for making a grievance against Jovic. Defendant said the officers then came at him, swinging their arms and grabbing him. He denied throwing his typewriter or stabbing Officer Yanni. He said that he had the pen in his hand when the officers rushed him and that any puncture wound occurred inadvertently when he attempted to fend off the attack.

In rebuttal the State recalled Kathleen Guyton. She testified that the pictures taken by Investigator Cole did not accurately depict defendant's injuries she observed after the incident. The State also called Howard Bell, an assistant prosecutor of Hudson County, who testified that he presented the complaints of the officers and defendant's counter-complaint to the grand jury. He said that he did not call the defendant as a witness because of "obvious security issues" but played an audiotape statement of defendant relating his version of the incident.

Following his conviction and sentence defendant appealed and asserts the following arguments:

POINT I - THE LOWER COURT ERRED IN DENYING THE DEFENSE MOTION TO BAR THE STATE FROM MAKING REFERENCES TO THE SEX OFFENDER STATUS OF THE DEFENDANT AND DEFENSE WITNESSES.

POINT II - THE TRIAL COURT ERRED IN DENYING THE MOTION TO SANITIZE WITNESSES' AND DEFENDANT'S CRIMINAL RECORDS.

POINT III - THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT IV - THE PROSECUTOR'S MISREPRESENTATIONS IN SUMMATION DENIED DEFENDANT A FAIR TRIAL.

POINT V - THE TRIAL COURT ERRED IN BARRING THE ADMISSION OF DEFENDANT'S OUT-OF-COURT STATEMENT.

POINT VI - DEFENDANT RECEIVED AN ILLEGAL SENTENCE. (Not Presented Below.)

POINT VII - THE SENTENCE IMPOSED BY THE COURT IS EXCESSIVE.

Prior to trial the defense moved in limine to prevent the prosecutor from making references to the status of defendant and his witnesses as sexual predators in the STU. Judge O'Connor denied the application, stating that such evidence was relevant as to potential bias of the defense witnesses and also would convey to the jury necessary information as to the duties of the officers, their relationship to the defense witnesses and defendant, and would explain the location and circumstances of the events.

The relevance of proffered evidence and its admissibility falls within the ambit of the trial judge's discretion. State v. Nelson, 173 N.J. 417, 470 (2002); State v. McDougald, 120 N.J. 523, 577-78 (1990); N.J.R.E. 401. We will not overturn a ruling denying exclusion of evidence on grounds of prejudice save where the trial court's determination was clearly erroneous. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v. Fulston, 325 N.J. Super. 184, 192-93 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000). Here the trial judge determined that the relevance and probity of the evidence was not outweighed by the risk of undue prejudice. We find no abuse of discretion. We also note that defendant chose not to have a limiting instruction given to the jury with respect to his status and that of his witnesses.

Defendant also sought a pre-trial ruling either to exclude proof of his prior convictions and the prior convictions of his witnesses or to "sanitize" the convictions. See State v. Brunson, 132 N.J. 377, 391-92 (1993); State v. Hicks, 283 N.J. Super. 301, 307 (App. Div. 1995). Whether a prior conviction will be admitted into evidence against a criminal defendant rests in the discretion of the trial judge, and the burden of proof justifying exclusion falls on the defendant. State v. Sands, 76 N.J. 127, 144-45 (1978). Defendant argues that the revelation of the prior criminal convictions of crimes of a sexual nature by defendant and his witnesses had the potential to cause extraordinary prejudice. However, Judge O'Connor reasoned that since the charges against defendant were dissimilar to the sexual offenses for which defendant was convicted, he did not suffer undue prejudice from disclosure of his convictions, especially since the judge permitted testimony as to the STU. He also found disclosure of the convictions of defense witnesses was proper cross-examination on the issue of credibility and that there was no issue of sanitizing the convictions since they were witnesses and not defendants. We agree. There was no abuse of discretion in permitting questions about the convictions to attack credibility, and the jury was properly instructed as to the use of such testimony.

Defendant also argues that Assistant Prosecutor Bell's testimony that he did not have defendant testify in person before the grand jury "for obvious security reasons" constituted error of such magnitude as to mandate a reversal and new trial. However, defendant raised the issue by his testimony that he was not brought to the grand jury, thereby "opening the door" and expanding the relevance of the testimony. See State v. James, 144 N.J. 538, 554 (1996).

Defendant's remaining arguments as to his convictions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Moreover, defendant's assertion that his sentence was illegal based on State v. Natale, 184 N.J. 458 (2005) is without substance. Natale eliminated presumptive terms for indictable convictions only, and defendant's convictions in this instance were for disorderly persons offenses. Finally, Judge O'Connor's sentence of defendant to the aggregate maximum term of six months was properly grounded in defendant's criminal history and the absence of any mitigating factors.

Affirmed.

 

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A-3929-04t5

March 21, 2006