STATE OF NEW JERSEY v. DAURICE TURNER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6506-06T46506-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAURICE TURNER,

Defendant-Respondent.

________________________________________________________________

 

Submitted May 5, 2008 - Decided

Before Judges Parrillo and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-05-1879.

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

Joshua M. Ottenberg, Special Deputy Attorney General, Acting Camden County Prosecutor, attorney for respondent (Laurie A. Corson, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Daurice Turner appeals from his March 9, 2007 conviction on a charge of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). He argues that the waiver decision made by the Chancery Division, Family Part to the Law Division, Criminal Part was impermissibly based on hearsay evidence. He also maintains that his subsequent guilty plea in the Law Division lacked a proper factual basis, thereby entitling him to the vacating of that plea. We disagree and affirm.

I.

On January 9, 2006, Diane Jeffers delivered a pizza to 31 Pritchard Lane in Winslow Township. When she exited her car, a young male approached her, pushed her against her vehicle and demanded that she give him all of her money. In response to his demand, she gave him approximately $500 in cash. He then punched her twice with a closed fist on the right side of her head, causing her to fall to the ground. At that point, her assailant and another man jumped into her car and drove away. After canvassing the area, police found Jeffers's car parked nearby, but were unable to identify any suspects. After processing the car for fingerprints, police found two sets of fingerprints. Those on the driver's side belonged to defendant Daurice Turner, and those on the passenger side belonged to Danilo Leonen.

Winslow Township police officer Brian Perticari interviewed Leonen who admitted that he and defendant had ordered pizza from a local pizza store with the intention of robbing the delivery person and stealing his or her car. Leonen also told Perticari that after Jeffers exited her car, Turner punched her twice in the face and then took off with Leonen in her car.

Winslow Township police charged Turner with conduct which, if committed by an adult, would constitute first-degree carjacking and armed robbery. Because Turner was charged with first-degree crimes, N.J.S.A. 2A:4A-26 requires only that the State prove probable cause in order to obtain a waiver of those charges to the Law Division, Criminal Part. Perticari was the only witness to testify at the waiver hearing. Without objection, he testified to the statements provided by both Jeffers and Leonen. On March 28, 2006, at the conclusion of the waiver hearing, the Family Part waived its jurisdiction over the charges and referred them to the Law Division.

On February 9, 2007, defendant entered a negotiated plea of guilty to second-degree aggravated assault. During the plea colloquy, defendant provided a factual basis for his plea of guilty to the charge of second-degree aggravated assault. He stated under oath that he punched Jeffers in the face twice with a closed fist, causing her to fall to the ground. Defendant was then asked by his attorney, who was eliciting the factual statement, whether when he hit Jeffers, he had "intend[ed] to cause her serious injury"; defendant answered "yes."

On appeal, defendant argues:

I. THE FAMILY COURT JUDGE'S RELIANCE ON STATEMENTS THAT WERE NEVER SUBJECTED TO CROSS-EXAMINATION PRODUCED AN UNRELIABLE RESULT IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. ( U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10). (Not raised below)

II. BECAUSE THE JUVENILE'S TESTIMONY AT THE PLEA HEARING DID NOT SET OUT A FACTUAL BASIS ENCOMPASSING ALL OF THE ELEMENTS OF SECOND-DEGREE AGGRAVATED ASSAULT, THE PLEA SHOULD BE VACATED AND THE MATTER SHOULD BE REMANDED TO THE COURT FOR FURTHER PROCEEDINGS. (Not raised below)

II.

We turn first to defendant's argument in Point I that the Family Court's reliance on hearsay testimony from Detective Perticari produced an "unreliable result" that entitles him to a reversal of the waiver order. We need not tarry long discussing his contentions.

Defendant relies upon State in the Interest of M.C., 335 N.J. Super. 325, 329 (App. Div. 2000), in support of his contention that hearsay evidence is not permitted in waiver hearings. We agree with his contention that the right to confront witnesses cannot be abridged, and is indeed essential, for a finding of delinquency. In re Gault, 387 U.S. 1, 56, 57 S. Ct. 1428, 1459, 18 L. Ed. 2d 527, 562-63 (1967). Those same rights do not, however, apply at a waiver hearing designed to establish probable cause. State v. J.M., 182 N.J. 402, 417 (2005). Unquestionably, hearsay evidence may be relied upon to determine probable cause in juvenile waiver proceedings. State in the Interest of A.T., 245 N.J. Super. 224, 228 (App. Div. 1991). Accordingly, defendant's claim that the Family Part's reliance on hearsay testimony at the waiver hearing entitles him to reversal of that order is meritless.

Moreover, by ultimately pleading guilty in the Law Division, defendant has relinquished any right to complain of any defects that may have occurred in any earlier proceedings. State v. Knight, 183 N.J. 449, 470 (2005).

III.

In Point II, defendant argues that because his testimony during the plea colloquy in the Law Division "did not set out a factual basis encompassing all of the elements of second-degree aggravated assault, the plea should be vacated and the matter should be remanded to the trial court for further proceedings." The State argues that the factual basis provided by defendant under oath "was more than sufficient to support his conviction for second-degree aggravated assault."

Before a judge is permitted to accept a guilty plea, the judge must be satisfied that the defendant has provided an adequate factual basis for that plea. State v. Barboza, 115 N.J. 415, 421 n.1 (1989). In fact, the Rules of Court prohibit a judge from accepting a guilty plea if a suitable factual basis is not provided. R. 3:9-2. Prior to accepting a defendant's guilty plea, the court must personally address the defendant and determine if there is a factual basis for the plea. Ibid. The factual basis must contain every element of the crime to which the defendant is pleading guilty. State ex rel. T.M., 166 N.J. 319, 333 (2001).

Here, defendant raises two claims in support of his contention that the factual basis he provided was inadequate: (1) he acknowledged that he intended to cause Jeffers "serious injury," which is inadequate to support second-degree aggravated assault because the statute in question requires an attempt to cause "serious bodily injury" rather than "serious injury"; and (2) because of the meager extent of Jeffers's injuries, the factual statement was insufficient in the absence of a question that included the statutory definition of "serious bodily injury" contained in N.J.S.A. 2C:11-1(b).

In response to defendant's first argument, the State argues that "the omission of the term 'bodily' in defendant's factual basis is immaterial because his admission that he struck the victim twice precludes any other type of injury. The term is almost surplusage in the context of this case." We agree. Unquestionably, in the context of the answers defendant provided during the plea colloquy, the only type of injury that was discussed was bodily injury to Diane Jeffers. Therefore, the omission of the word "bodily" from the questioning is of no moment. We agree with the State that the likely reason for including the term "bodily" in the statutory definition is to distinguish bodily injury from other types of injury, such as emotional harm, which is not covered, see State v. Williams, 197 N.J. Super. 127, 132 (App. Div. 1984), certif. denied, 99 N.J. 233 (1985), or pecuniary damage. Under the circumstances presented here, defendant's admission that he intended to cause "serious injury" was more than adequate to support the charge of second-degree aggravated assault.

Defendant also argues that the court was required to read the statutory definition contained in N.J.S.A. 2C:11-1(b) when it asked him whether he intended to inflict such injury. That argument is equally unavailing. A person may be found guilty of second-degree aggravated assault if he purposely, knowingly or recklessly causes serious bodily injury or if he purposely attempts to do so. N.J.S.A. 2C:12-1(b)(1). The evidence adduced at the waiver hearing established that Jeffers sustained redness and swelling on her face, but she declined medical treatment. We do not quarrel with defendant's argument that he did not actually cause serious bodily injury, which is defined as "serious, permanent disfigurement" or "protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1(b). As we have stated, a defendant may be found guilty of second-degree aggravated assault if he purposely attempts to inflict such injury.

Here, defendant admitted that his intent was to cause the victim "serious injury." He acknowledged punching her in the face with a closed fist twice so hard that she fell to the ground. He also admitted that when he inflicted those blows, his intention was to cause her "serious injury." We consider the term "intend" as for all practical purposes interchangeable with the term "purposely attempt." We are satisfied that defendant's description of his attack on Jeffers combined with his acknowledgment that he intended to cause her serious injury was a sufficient factual basis that entitled the judge to have accepted defendant's guilty plea.

 
Affirmed.

We note that defendant filed a motion in the Law Division, prior to sentencing, to withdraw his guilty plea. In that motion, he claimed that the plea should be withdrawn because he was not present during the incident in question and had nothing to do with the attack on Diane Jeffers. The judge denied that motion and proceeded with sentencing. On appeal, defendant does not appeal from the denial of the motion to withdraw his guilty plea. Instead, he confines his argument to the alleged inadequacy of the factual basis he provided. Accordingly, we do not address the issue of whether the Law Division correctly denied defendant's motion to withdraw his guilty plea because that claim has not been presented to us on appeal.

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A-6506-06T4

May 15, 2008