STATE OF NEW JERSEY v. MALIK NASHBY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1457-06T42597-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MALIK NASHBY, a/k/a

RICHARD WILLIAMS,

Defendant-Appellant.

_____________________________________________

 

Submitted October 20, 2008 - Decided:

Before Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-12-03692.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief.)

PER CURIAM

A grand jury indicted defendant for first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); and third-degree terroristic threats, N.J.S.A. 2C:12-3a (count three). A jury convicted defendant under count two of the lesser-included offense of third-degree aggravated assault upon a county corrections officer, N.J.S.A. 2C:12-1b(5)(h). Judge Giles sentenced defendant to an extended seven-year term of imprisonment. The judge also imposed the appropriate assessments and penalties and suspended defendant's driver's license for twenty-four months.

On appeal, defendant raises the following contentions:

POINT I

THE TRIAL JUDGE ERRED IN FAILING TO CHARGE THE JURY THAT "MERE PRESENCE" ALONE COULD NOT SUSTAIN A CONVICTION (Partially Raised Below).

POINT II

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

We reject these contentions and affirm.

The following facts are summarized from the record. Defendant and Nadir Britt were inmates at the Essex County Correctional Facility. At approximately 12:30 p.m. on September 13, 2004, Essex County Corrections Officer Patrick Whalen was on duty in the E pod. He was alone and unarmed. Lunch had just been served in the kitchen of the E pod, and the specially assigned kitchen staff was cleaning up. Except for the assigned workers, no other inmates, including defendant and Britt, were permitted in the kitchen.

Whalen was sitting at his desk when he heard loud banging coming from the kitchen. He left his desk to investigate the banging. He observed defendant in the kitchen banging on the glass, gesturing to inmates in other pods. Such gesturing, which indicated gang signals, was not permitted.

Whalen ordered defendant numerous times to leave the kitchen. Defendant repeatedly refused, stating that Whalen was not in charge and could not tell defendant what to do. Whalen touched defendant's arm, intending to escort him from the kitchen. Defendant spun around and threatened Whalen. Britt then approached Whalen from behind and struck him in the back of the head. Defendant then punched Whalen in the front of his head. Whalen struggled with defendant and was pushed to the ground. Defendant and other inmates then kicked and punched Whalen until he lost consciousness.

As a result of the assault, Whalen tore both meniscsal cartilages in his knee, requiring surgery. He also suffered depression, anxiety and post-traumatic stress disorder. He was placed on anti-anxiety and anti-depression medication, and could not return to work. He retired on a disability pension.

At trial, defendant's defense was that Britt punched Whalen and that defendant was merely a spectator. Defense counsel indicated that Britt's testimony would corroborate this defense. Prior to Britt's testimony, defense counsel asked Judge Giles if he intended to give a "mere presence" jury instruction. It was determined that such a charge would abide Britt's testimony.

Britt later testified. He testified that he struck Whalen and kicked and punched the officer when he fell to the floor. Britt also testified that defendant had nothing to do with the assault and that defendant had run back to his cell after Britt struck Whalen.

Whalen and Corrections Officers Phyllis Slade and Dwight Nelson contradicted Britt's testimony. Slade testified that she observed defendant yell at and strike Whalen in the face with a closed fist. Whalen then fell to the floor. Slade lost sight of Whalen and immediately radioed for help, indicating an officer was down.

Nelson testified that he observed Whalen in the kitchen area of the E pod arguing with defendant and gesturing for defendant to leave the kitchen. Defendant then shoved Whalen and punched him in the head. The officer then saw Whalen go down. Nelson immediately radioed for help.

Judge Giles never gave the "mere presence" charge. Defense counsel did not object. Defendant now contends that failure to give the charge constitutes reversible error. We disagree.

Proper jury instructions are essential to a fair trial. State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensive explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. In assessing the propriety of the jury charge, we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005). If no prejudicial error appears from our reading of the charge, the verdict must stand. State v. Coruzzi, 189 N.J. Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983).

Defendant was charged with second-degree aggravated assault. The judge instructed the jury that "[a] person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly, or under circumstances manifesting extreme indifference to the value of human life, recklessly causes such injury." See N.J.S.A. 2C:12-1b(1). The judge then followed the model jury charge on aggravated assault. See Model Jury Charge (Criminal), "Aggravated Assault - Serious Bodily Injury" 2005. He explained in detail the elements the State must prove beyond a reasonable doubt in order to find defendant guilty of that charge.

The judge also instructed the jury that if it found defendant not guilty of aggravated assault, it had "to consider the lesser included offense of aggravated assault on a corrections officer, attempting to cause, or purposely, knowingly or recklessly causing bodily injury." See N.J.S.A. 2C:12-1b(5)(h). The judge then followed the model jury charge on aggravated assault upon a law enforcement officer. See Model Jury Charge (Criminal), "Aggravated Assault - Upon Law Enforcement Officer (Attempting To Cause Or Purposely, Knowingly Or Recklessly Causing Bodily Injury)" 2001.

Judge Giles was not required under the facts of this case to give a separate "mere presence" charge. The charges given clearly instructed the jury that the State must prove, beyond a reasonable doubt, the elements of aggravated assault and the lesser included offense of aggravated assault on a corrections officer. Thus, if the jury had believed that defendant was merely a spectator and did not participate in the assault, it would have acquitted him of both charges. Based upon our review of the charges as a whole, we are satisfied that no error occurred.

We now address defendant's sentence. Defendant admits that he was eligible for an extended-term sentence. N.J.S.A. 2C:44-3a. However, he contends that the appropriate sentence should be five years, not the mid-range seven years the judge imposed. We disagree.

We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). When reviewing a judge's sentencing decision, we "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated, we must determine that findings on aggravating and mitigating factors are based on the evidence, and we must decide whether application of the guidelines make a particular sentence clearly unreasonable that it shocks the judicial conscience. O'Donnell, supra, 117 N.J. at 215; Roth, supra, 95 N.J. at 364-65;.

Here, five to ten years is the applicable extended term range for a third-degree offense. N.J.S.A. 2C:43-7. In imposing the mid-range seven-year term, Judge Giles found aggravating factors three (the risk that defendant will commit another offense), N.J.S.A. 2C:44-1a(3), and six (the extent of defendant's prior criminal record and the seriousness of the offense of which he has been convicted), N.J.S.A. 2C:44-1a(6). Defendant contends that the judge double-counted his criminal record. He also contends that the judge failed to consider that the offense for which he was convicted was only a simple assault, which would have constituted a disorderly persons offense had it not involved a corrections officer. These contentions lack merit.

The record indicates that defendant assaulted Whalen while confined and awaiting trial on murder and weapons charges. Also, defendant has a lengthy juvenile record, including two adjudications. Defendant also has three indictable adult convictions: (1) in March 1997 for receiving stolen property; (2) in May 1997 for receiving stolen property; and (3) in 1998 for simple assault, aggravated assault, receiving stolen property , eluding and criminal mischief. The judge used only two convictions to qualify defendant as a persistent offender. The judge was permitted to use the third conviction as an aggravating factor. And finally, the assault on Whalen was very serious. It resulted in injuries so severe that the officer was forced to retire.

The judge also found aggravating factor nine (the need for deterring defendant and others from violating the law) N.J.S.A. 2C:44-1a(9). We reject defendant's suggestion that the need to deter should be given minimal penal significance. There is clearly a need to deter inmates from attacking and injuring corrections officers. Also, although defendant knew that assaulting a corrections officer would result in more jail time, he assaulted Whalen anyway. Thus, there is a specific need to deter him and other inmates from repeating this behavior.

The judge also found aggravating factors eight (the offense was committed against a law enforcement officer), N.J.S.A. 2C:44-1a(8). Whalen's status as a corrections officer was already an element of the aggravated assault charge, thus precluding its consideration as an aggravation factor. Nevertheless, we are satisfied that remaining aggravating factors justify the sentence imposed.

The judge also found mitigating factor two, (defendant did not contemplate that his conduct would cause or threaten serious harm), N.J.S.A. 2C:44-1b(2). We reject defendant's contention that the judge should also have considered his age at the time (24 years). There is nothing in the record indicating that defendant's age mitigated his conduct in any way.

Based upon our careful review of the record, we discern no reason to disturb the sentence. The judge's findings of aggravating and mitigating factors are amply supported by the evidence. The extended-term sentence is within the range for a third-degree offense.

Affirmed.

The trial judge dismissed count one on defendant's motion at the conclusion of all evidence.

Britt was defendant's only witness. He pled guilty to aggravated assault on Whalen and received a ten-year term of imprisonment with an eighty-five percent period of parole ineligibility.

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A-2597-07T4

December 26, 2008