STATE OF NEW JERSEY v. LENVA HIGGINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LENVA HIGGINS,

Defendant-Appellant.

__________________________

April 11, 2014

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-05-1106.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Lenva Higgins was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a). The trial judge imposed a three-year term of imprisonment and the appropriate penalties and assessments. We affirm.

We derive the following facts from the record. At approximately 4:45 a.m. on April 8, 2012, defendant became disorderly while gambling at the Resorts Casino in Atlantic City, and was instructed by security personnel to leave the casino. Defendant did not comply, resulting in security personnel handcuffing him and placing him in a holding cell. A security shift manager intended to charge defendant with disorderly conduct and called the New Jersey State Police to remove him from the casino.

State Police Detectives James Hoopes and Robert Comunale arrived at the casino, identified themselves as State Police detectives, and transported defendant, still handcuffed, to a bus terminal. The detectives intended to release defendant with a summons for disorderly conduct and permit him to return to his home in New York. When they reached the terminal, defendant refused to exit the vehicle and said he had a room at a local motel. When they reached the motel, defendant again refused to exit the vehicle, so the detectives forcibly removed him. Detective Comunale held defendant facing against the vehicle, while Detective Hoopes attempted to remove the handcuffs. Defendant "flail[ed] his head back" and "head butted" Detective Comunale below the left eye. Defendant then got into a "fighting stance," and was "pepper sprayed" as he charged at the detectives. The detectives then restrained defendant, re-handcuffed him, and transported him to headquarters to charge him with aggravated assault. Detective Hoopes saw a red discoloration mark under Detective Comunale's left eye, where defendant had struck him.

It is against these facts that defendant raises the following contentions:

POINT I: THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF AGGRAVATED ASSAULT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW).

POINT II: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

"[T]he issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1. However, while we need not entertain a weight of the evidence argument in the absence of a new trial motion, we nevertheless choose to do so in the interest of justice. State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993).

"A person is guilty of aggravated assault if he . . . commits a simple assault . . . upon . . . [a]ny law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer[.]" N.J.S.A. 2C:12-1b(5)(a).

A person is guilty of simple assault if he or she "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or . . . [n]egligently causes bodily injury to another with a deadly weapon; or . . . [a]ttempts by physical menace to put another in fear of imminent serious bodily injury." N.J.S.A. 2C:12-1a(1)-(3). "'Bodily injury' is defined as 'physical pain, illness or any impairment of physical condition.'" State ex rel. S.B., 333 N.J. Super. 236, 242 (App. Div. 2000) (quoting N.J.S.A. 2C:11-1a); see also N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997).

"'Not much is required to show bodily injury." N.B., supra, 297 N.J. Super. at 43. "Even the slightest physical contact, if done intentionally, is considered a simple assault under New Jersey Law." New Jersey v. Bazin, 912 F. Supp. 106, 115 (D.N.J. 1995); see also State v. Downey, 242 N.J. Super. 367, 371 (Law Div. 1988) (concluding that a stinging sensation from a purposeful and knowing slap is sufficient to establish simple assault).

Here, defendant intentionally struck Detective Comunale below the left eye with his head, causing a red discoloration mark. This sufficiently established bodily injury necessary for a finding of simple assault. Accordingly, there was ample credible evidence supporting the jury's finding that defendant committed an assault on a law enforcement officer in violation of N.J.S.A. 2C:12-1b(5)(a).

We have considered defendant's contention that his sentence is manifestly excessive in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Mark H. Sandson at defendant's sentencing hearing on October 12, 2012. However, we make the following brief comment.

Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). The record amply supports the judge's findings on aggravating and mitigating factors, and the sentence does not shock our judicial conscience. Miller, supra, 205 N.J. at 127-28.