STATE OF NEW JERSEY v. PETAR N. ARMBRUSTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5491-03T45491-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PETAR N. ARMBRUSTER,

Defendant-Appellant.

_______________________________________

 

Submitted November 14, 2005 - Decided

Before Judges A. A. Rodr guez, C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-10-1387.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Petar N. Armbruster was charged under a Mercer County indictment with aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count one); aggravated assault, contrary to N.J.S.A. 2C:12-1b(2) (count two); possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (count three); and unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d (count four). After a trial before a jury, defendant was convicted on all charges. The judge merged count two with count one and count four with count three. The judge sentenced defendant to an extended term of 15 years on count one, with an 8 year period of parole ineligibility. The judge also imposed a concurrent five year term on count three. Defendant appeals his conviction and the sentences imposed. We affirm in part, reverse in part, and remand for entry of a corrected judgment of conviction.

We briefly summarize the relevant facts based on the evidence presented at trial. On October 29, 2000, Mark Urban was outside a convenience store in Trenton when he heard someone call out his name. Urban saw defendant in a car in the parking lot. Defendant called Urban over and, according to Urban, defendant told him that he was going to shoot and kill him. Urban entered the store and defendant drove off. Urban's acquaintance Daniel VanHorn and VanHorn's girlfriend Michelle Wood were in the store. Urban asked VanHorn to walk outside with him because he was threatened by someone in the parking lot.

Urban and VanHorn left the store and they encountered defendant outside the store. He was in a white Oldsmobile. Urban began to argue with defendant. VanHorn said that, at the time, he did not know defendant's name. He had never seen him before. VanHorn suggested that defendant and Urban "go around the corner and settle what you have to settle." Defendant asked VanHorn his name. When VanHorn replied that defendant did not need to know his name, defendant said that he had "something" for VanHorn and would be "right back." Defendant backed his car out of the parking lot and drove off.

VanHorn and Urban left the parking lot and walked one block up the street. As VanHorn and Urban were walking across the street, defendant drove up with his car and tried to hit them both. VanHorn was scared and ran across the street, but defendant kept following him, driving the car forward and in reverse. VanHorn ran through the parking lot of a restaurant, then down an alley. He looked back and saw the white car that he had seen in the parking lot of the convenience store. VanHorn testified that the next thing he remembered was waking up on the ground. The bones in his left leg were protruding from the skin. VanHorn had two surgeries to repair the injuries.

Defendant's girlfriend at the time was Leslie Tymkiw. She testified that, after he returned from the convenience store, defendant showed her the damage to his car and said that he "hit somebody." Several days later, defendant showed Tymkiw a newspaper article about the incident and he told her to read it. He said it "has me in there." Kristine Mary Lindenmuth, who also was having a relationship with defendant at the time, testified that defendant told her in November 2000 that he hit "somebody with his car." He named VanHorn as the victim. Defendant told Lindenmuth that he no longer had the Oldsmobile because "he got into a confrontation with a kid and . . . hit him with his car."

Trevor Desouza shared a cell with defendant at the Mercer County Correctional Facility in May and June 2003. He testified that during this time defendant recounted an incident where he was driving a white Oldsmobile, ran over a young guy, and then "backed up over him." Defendant told Desouza that Urban was going to testify against him and defendant "wanted him exterminated like the rat that he is."

Defendant testified in his defense. He stated that he had never met VanHorn. He said that he had nothing against VanHorn and he denied owning or possessing an automobile on October 29, 2000. Defendant asserted that he told Lindemuth that he had been accused of striking VanHorn with an automobile but he said he never told her that he committed this offense. Defendant also admitted discussing the incident with Tymkiw but stated that he never told her that he struck VanHorn. Defendant additionally testified that he never discussed the case with Desouza. He did mention the case to a "gentleman" who was in his "area." Defendant told this "gentleman" about the charges he was facing, but he said that he never discussed the case with him.

On this appeal, defendant raises the following contentions:

POINT I: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TESTIMONY OF MARK URBAN, LESLIE TYMKIW AND TREVOR DESOUZA WHICH PERTAINED TO OTHER CRIMINAL CONDUCT AND WHICH PORTRAYED DEFENDANT AS A DANGEROUS PERSON PRONE TO VIOLENCE (NOT RAISED BELOW).

POINT II: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF CROSS-EXAMINATION OF A DEFENSE WITNESS WHICH INFORMED THE JURY THAT DEFENDANT WAS INCARCERATED AT THE TIME OF TRIAL (NOT RAISED BELOW).

POINT III: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF IMPROPER QUESTIONING OF DEFENDANT BY THE ASSISTANT PROSECUTOR WHICH CONVEYED THE IMPRESSION THAT DEFENDANT HAD BEEN INVOLVED IN PRIOR THREATENING BEHAVIOR (NOT RAISED BELOW).

POINT IV: THE TRIAL JUDGE ERRED BY FAILING TO ISSUE ANY LIMITING INSTRUCTIONS TO THE JURY REGARDING THE NUMEROUS INSTANCES IN WHICH TESTIMONY WAS ELICITED ASSOCIATING DEFENDANT WITH OTHER CRIMINAL CONDUCT (NOT RAISED BELOW).

POINT V: THE JURY'S VERDICT FINDING DEFENDANT GUILTY OF AGGRAVATED ASSAULT ON THE BASIS THAT HE CAUSED SERIOUS BODILY INJURY WAS AGAINST THE WEIGHT OF THE EVIDENCE (PARTIALLY RAISED BELOW).

POINT VI: THE TRIAL JUDGE ERRED IN INSTRUCTING THE JURY REGARDING AGGRAVATED ASSAULT BASED UPON AN ACTUAL INFLICTION OF SERIOUS BODILY INJURY (NOT RAISED BELOW).

POINT VII: THE TRIAL JUDGE ERRED IN RULING THAT ALL OF DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILTY.

POINT VIII: DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE ASSISTANT PROSECUTOR'S CROSS-EXAMINATION OF THE DEFENDANT CONCERNING HIS PRIOR CRIMINAL RECORD AFTER IT HAD BEEN DISCLOSED IN HIS DIRECT TESTIMONY (NOT RAISED BELOW).

POINT IX: THE TRIAL JUDGE ERRED IN FAILING TO MERGE COUNT III CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WITH COUNT I CHARGING AGGRAVATED ASSAULT.

POINT X: THE SENTENCES IMPOSED WERE UNCONSITUTIONAL BECAUSE THEY EXCEEDED THE MAXIMUM SENTENCES AUTHORIZED BY THE JURY VERDICTS.

POINT XI: THE SENTENCES IMPOSED ARE MANIFESTLY EXCESSIVE.

In a supplemental pro se brief, defendant raises the following additional contentions:

POINT I: DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED BY THE PROSECUTOR'S MISCONDUCT IN COMMENTING ON MATTERS NOT IN EVIDENCE, MISCHARACTERIZING THE TESTIMONY AND ELICITING INADMISSIBLE EVIDENCE (NOT RAISED BELOW).

POINT II: THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL AS A RESULT OF LATE DISCOVERY, NO DISCOVERY OR NEW INFORMATION RECEIVED LITERALLY AT THE START OF THE TRIAL.

POINT III: DEFENDANT WAS ERRONEOUSLY DENIED CERTAIN EVIDENCE BY THE COURT BECAUSE IT WAS FOUND TO BE IRRELEVANT (NOT RAISED BELOW).

POINT IV: DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL BECAUSE HE WAS DENIED THE RIGHT TO PRESENT EVIDENCE FROM CORRECTION OFFICER KEVIN BROADBENT, DETECTIVE ROBERT O'DWYER AND ROBERT "PETE" CLARK (NOT RAISED BELOW).

POINT V: DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS OF LAW BECAUSE THE JUDGE PROVIDED AN INCOMPLETE INSTRUCTION TO THE JURY CONCERNING PRIOR OUT OF COURT STATEMENTS.

We turn first to defendant's assertion that he was denied a fair trial because of certain testimony that was elicited from Urban, Tymkiw and Desouza which pertained to other crimes or bad acts and portrayed him as a person prone to violence. We note that there was no objection by defense counsel to this testimony at trial. Thus, we consider whether admission of the testimony was plain error under R. 2:10-2.

"Evidence of other crimes, wrongs or acts may not be introduced into evidence to prove a defendant's criminal disposition as a basis for establishing guilt of the crime charged." State v. Covell, 157 N.J. 554, 563 (1999). However, such evidence may "be admitted to prove other facts in issue, such as 'motive, intent, plan, knowledge, identity, or absence of mistake or accident.'" Id. at 563-64 (quoting State v. Stevens, 115 N.J. 289, 293 (1989)). We are satisfied that the testimony of Urban, Tymkiw and Desouza did not deprive defendant of a fair trial.

On direct examination, Urban testified about his dispute with defendant which led to the assault upon VanHorn. Urban testified that in the parking lot defendant "showed me a gun and told me he was going to shoot me." Urban's testimony was plainly relevant to defendant's motive in assaulting VanHorn because the assault arose of the verbal altercation between Urban and defendant, which escalated after VanHorn interjected himself into the dispute. The judge's failure to strike the testimony sua sponte was not erroneous.

Tymkiw was asked on cross-examination how she came to be a witness for the State. She admitted that, until the time when she was contacted by the prosecutor's office, she had never told anyone that defendant admitted striking VanHorn with his automobile. On redirect, Tymkiw was asked to explain why she had not told anyone about defendant's statement. Tymkiw replied that she had been scared. She said, "You know, dating him, like, he used to beat me up." Tymkiw's testimony was relevant to explain her delay in reporting defendant's admitted involvement in the assault. Defense counsel did not object or move to strike. The judge did not err in failing sua sponte to strike the evidence.

Desouza testified about statements defendant made while they were incarcerated in the county correctional facility. On cross-examination, defense counsel asked Desouza if he knew Urban. Desouza said that he met Urban for the first time in the hallway shortly before he testified. When defense counsel asked whether Desouza had known Urban before that time, he replied that he never met him but defendant told him that he wanted Urban exterminated "like the rat that he is." We agree with defendant that Desouza's answer was not responsive to the question, but defense counsel did not move to strike the testimony, nor did he ask the judge to instruct the jury to disregard Desouza's statement. In any event, we are convinced that the judge's failure to strike sua sponte Desouza's spontaneous remark was not an error "clearly capable of producing an unjust result." R. 2:10-2.

Defendant next contends that he was denied a fair trial because, in the assistant prosecutor's cross-examination of Raymond Williams, the jury was made aware of defendant's incarcerated status. Williams had been called as a witness by defendant to rebut Desouza's testimony that defendant admitted assaulting VanHorn while incarcerated in the county jail. Williams also had been incarcerated at the time and testified that he did not think that defendant and Desouza had gotten along. The assistant prosecutor asked Williams when was the last time he had spoken with defendant. Williams replied "probably this morning in the holding cell together." Defendant asserts that, although the judge provided a curative instruction concerning the testimony mentioning defendant's "temporary incarceration" at the county jail, she failed to instruct the jury as to William's comments which indicated that defendant was incarcerated at the time of trial. We disagree.

The judge's instruction made clear that the testimony regarding defendant's "temporary incarceration" at the county jail was only to be considered for a limited purpose, which was to provide the context or setting in which certain conversations allegedly took place. The judge stated, "This information must not be considered by you as any evidence of the defendant's guilt." The judge added:

I remind you of the fundamental proposition of our system of justice. The defendant is presumed innocent unless and until the State proves his guilt on one or more charges beyond a reasonable doubt. His temporary incarceration is a fact which is totally irrelevant to the issue of defendant's guilt. I repeat, that information may only be considered by you in evaluating testimony regarding conversations which allegedly took place at the correction center. You may not consider it as any evidence of the guilt of the defendant on any of the charges. . . .

We emphasize again that defense counsel did not object to this instruction. In our view, the charge was sufficient to instruct the jury that the fact of incarceration was "totally irrelevant to the issue of defendant's guilt." We are convinced that the absence in the instruction of any specific reference to Williams' comment about defendant's incarceration at the time of trial was not an error "clearly capable of producing an unjust result." R. 2:10-2.

We turn to defendant's assertion that his conviction of aggravated assault was against the weight of the evidence. Defendant was charged in count one with aggravated assault contrary to N.J.S.A. 2C:12-1b(1), which provides that a person is guilty of aggravated assault if he:

[a]tempts 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[.]

The term "serious bodily injury" is defined in N.J.S.A. 2C:11-1b as follows:

bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]

Defendant contends that there was insufficient evidence to show that VanHorn sustained a "serious bodily injury" in the assault. Again, we disagree.

Dr. Scott Miller, who is a board certified orthopedic surgeon, testified that VanHorn sustained a compound fracture of the left tibia in the assault. The doctor stated that the medical records showed that bone was protruding from VanHorn's skin and was, "in lay terms, shattered." Surgery was performed to attach a titanium rod "from the knee to the ankle" which "locked the length of the bone in place with cross screws." Six weeks later, another surgery was performed. A piece of bone was removed from VanHorn's leg because the doctors believed it would not heal. A piece of VanHorn's pelvis and bone from a cadaver were implanted in the fracture site. In addition, an electronic bone stimulator was inserted in the leg to help the healing process. VanHorn testified that his leg is not the same "as it was," continues to give him "problems," and aches from time to time. In addition, when asked whether he has the same mobility as before the assault, VanHorn said "No." We are satisfied that Miller's testimony and VanHorn's testimony were a sufficient basis upon which to find defendant guilty of aggravated assault contrary to N.J.S.A. 2C:12-1b(1).

We next consider defendant's assertion that the judge erred in failing to merge the charge of possession of a weapon for an unlawful purpose with the charge of aggravated assault. "Merger is not required when the evidence submitted to the jury is sufficient to permit it to determine that defendant possessed the [weapon] for an unlawful purpose independent of the greater offense." State v. Diaz, 144 N.J. 628, 632 (1996). A specific finding by the jury that the weapon was possessed for a broader purpose than commission of the substantive offense is not required. Id. at 638. However, the evidence must support a finding of a broader purpose to use the weapon unlawfully and the jury charge "does not include an instruction that the unlawful purpose is the same as using the weapon to commit the substantive offense[.]" Id. at 638-39.

When the jury's verdict is ambiguous, merger of the weapons charge with a substantive offense is determined by considering the following requirements:

(1) the defendant must have been charged in the indictment with possession of the weapon with a broader unlawful purpose, either generally or specifically, than using the weapon to kill or assault the victim of the greater offense, (2) the evidence must support a finding that the defendant had a broader unlawful purpose, (3) the judge must have instructed the jury of the difference between possession with the specific unlawful purpose of using the weapon against the victim of the greater offense and a broader unlawful purpose and (4) the verdict must express the jury's conclusion that the defendant had a broader unlawful purpose.

[Id. at 639 (quoting from State v. Williams, 213 N.J. Super. 30, 36 (App. Div. 1986), certif. denied, 107 N.J. 104 (1987)).]

We are convinced that judge erred in failing to merge the charges. Here, the weapon was the white Oldsmobile that defendant used to strike VanHorn. The judge instructed the jury that the State was required to prove beyond a reasonable doubt that "defendant's purpose in possessing the object was to use it as a weapon against the person of another." The State argues that the charge was sufficient to allow the jury to consider whether the weapon had been possessed for a broader purpose. However, in her instructions, the judge went on to state:

In this case, the State contends that the defendant's unlawful purpose in possessing the automobile was to use it unlawfully against the person of Daniel VanHorn. You must not rely upon your own notions of unlawfulness of some other undescribed purpose of the defendant, rather you must consider whether the defendant - whether the State has proven the specific unlawful purpose charged. The unlawful purpose alleged by the State may be inferred from all that was said or done, and from all of the surrounding circumstances of this case. However, the State need not prove that the defendant accomplished his unlawful purpose of using the weapon against the person of Daniel VanHorn.

Thus, the State had not alleged that defendant possessed the weapon for a broader purpose than using it as a weapon against VanHorn. The judge did not charge the jury to consider any purpose other than the assault upon VanHorn. In these circumstances, we are convinced that the judge should have merged count three with count one.

Defendant next contends that his sentence is manifestly excessive. We disagree. We are convinced that the judge did not abuse her discretion in imposing an extended term pursuant to N.J.S.A. 2C:44-3a based on defendant's lengthy criminal record. We also are satisfied that the judge did not abuse her discretion in imposing a custodial sentence of 15 years, with an 8 year period of parole ineligibility on count one. The judge found aggravating factors under N.J.S.A. 2C:44-1a(1) (nature and circumstances of the offense), N.J.S.A. 2C:44-1a(3) (risk of re-offense) and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. The judge's findings are supported by the record. We are convinced that the sentence imposed on count one is not manifestly excessive or unduly punitive. State v. O'Donnell, 117 N.J 210, 215-16, (1989); State v. Roth, 95 N.J 334, 363-65 (1984).

Defendant also argues that his sentences contravene the principles enunciated in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The extended term imposed on count one does not offend these principles. Jury fact finding is not required for the imposition of an extended term for a persistent offender. See State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005); and State v. Dixon, 346 N.J. Super. 126, 139-41 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002). Furthermore, the 15 year sentence imposed on count one is the presumptive sentence prescribed by N.J.S.A. 2C:44-1f(1) for an extended term on a second degree offense. N.J.S.A. 2C:43-7a(3). This is not a situation where a sentence was imposed based on judicial fact finding which is longer than the "statutory maximum" for Apprendi and Blakely purposes. See State v. Natale, 184 N.J. 458, 484 (2005). The sentence imposed on count one therefore does not violate defendant's right to trial by jury under the Sixth Amendment.

In addition, because we are of the view that count three must be merged with count one, the issue raised by defendant as to the constitutionality of the sentence imposed on count three is moot.

We have considered the other contentions raised by defendant and find those points are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).

Therefore, we affirm defendant's conviction and the sentence imposed on count one. We also vacate the sentence imposed on count three and remand for entry of a corrected judgment merging count three with count one.

 
Affirmed in part, reversed in part, and remanded for entry of a corrected judgment of conviction.

Defendant's name was misspelled in the notice of appeal and, consequently, the case was docketed as State of New Jersey v. Peter N. Armbruster. We have corrected the error.

(continued)

(continued)

17

A-5491-03T4

December 7, 2005