STATE OF NEW JERSEY v. GLENN TAYLOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1262-04T41262-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GLENN TAYLOR,

Defendant-Appellant.

_____________________________

 

Submitted May 9, 2006 - Decided May 30, 2006

Before Judges Kestin and Seltzer.

On appeal from the Superior Court

of New Jersey, Law Division, Criminal

Part, Essex County, 03-04-1442.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Steven M. Gilson,

Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Maria I. Guerrero,

Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

After a two-day jury trial, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1)(Count 1) and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count 2). He was acquitted on two other Counts. The Judgment of Conviction records concurrent custodial sentences of seven years, subject to the eighty-five percent parole disqualification period and three-year post-release supervisory period mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from both the convictions and the sentences imposed. We affirm the convictions and remand the matter for resentencing on Count 2 and for correction of the Judgment of Conviction.

The evidence presented by the State was, essentially, uncontested. That evidence revealed that the victim, Dr. Syed Khasimuddin, was a resident physician at St. Michael's Medical Center in Newark on February 20, 2003. At roughly 6:00 a.m., he was in the emergency room writing an assessment of a patient he had just evaluated. While Dr. Khasimuddin was "nodding off," he was, for reasons never explained, attacked by defendant. Defendant placed his victim "in a headlock with one arm and the other arm was coming down on top of his head with . . . some kind of screwdriver." When Dr. Khasimuddin was shown the screwdriver after the attack, it had blood on the tip. Defendant was able to strike Dr. Khasimuddin between five and eight times, producing a "cupful of blood," before he was subdued by others in the emergency room. Luckily, Khasimuddin suffered no serious injury, needing only six to eight stitches, a tetanus shot, antibiotics, and a pain killer for treatment.

On appeal, defendant does not contest the sufficiency of the evidence to sustain the second-degree aggravated assault conviction. Rather, defendant argues that the court erred in failing to charge the lesser included offence of third-degree aggravated assault, N.J.S.A. 2C: 12-1b(7). The difference between the crime that the judge charged to jury and the one that defendant now claims should have been charged lies in the extent of the injury attempted to be inflicted.

Aggravated assault, defined by N.J.S.A. 2C:12-1b, comprises eleven separate categories. N.J.S.A. 2C:12-1b(1) criminalizes, as second-degree aggravated assault, an attempt "to cause serious bodily injury to another." N.J.S.A. 2C:11-1b defines "serious bodily injury", as "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[.]" The judge charged that offense.

Defendant complains, however, that the judge failed to charge N.J.S.A. 2C:12-1b(7), which criminalizes, as third-degree aggravated assault, an attempt "to cause significant bodily injury to another[.]" N.J.S.A. 2C:11-1d defines "significant bodily injury" as "bodily injury which creates a temporary loss of the function of a bodily member or organ or temporary loss of any one of the five senses."

At the conclusion of the evidence, the judge and counsel considered the possible charges:

THE COURT: And the lesser includeds?

PROSECUTOR: I would submit to third-degree [and] the fourth-degree.

THE COURT: It's not that simple. There are third-degrees with weapon, there is significant bodily injury, significant bodily injury is a third-degree offence.

I guess we should discuss whether this could be seen as a deadly weapon. Then you have other options, a fourth degree with a deadly weapon, I believe.

Why don't I just take a look at it overnight, tell you my intention in the morning, you have a chance to do the same.

The following morning the judge advised counsel that, "As a lesser included of attempted aggravated assault, I'm going to charge third-degree aggravated assault, bodily injury with a deadly weapon[, N.J.S.A. 2C:12-1b(2),] and simple assault[, N.J.S.A. 2C:12-1a]." There was no objection to this proposal.

Because there was no request for the charge defendant now claims was improperly omitted, we review the evidence to determine if the charge was "clearly indicated." See State v. Garron, 177 N.J. 147, 180-81 n.5 (2003) (a requested charge must be given "if there is a rational basis in the record to do so" but a charge that is not requested must, nevertheless, be given only "if it is clearly indicated in the record."). Accordingly, defendant would have been entitled to the charge he now suggests if the record clearly indicated that a jury could find defendant had attempted to inflict only a temporary disability when he attacked Khasimuddin with a screwdriver.

In the absence of any discussion beyond that which we have related, we are left to conclude that the judge and the attorneys considered the issue and simply believed the facts could not support a finding that defendant attempted to cause only temporary injury. We agree. It seems manifestly impossible that an individual striking another with the point of a screwdriver attempted to cause only temporary injury. In another context, our Supreme Court has said that a person "would have expected that serious injury or even death would have resulted . . . [when] . . . one party, armed with a knife, thrusts it quickly into an unarmed adversary." Harleysville Ins. Co. v. Garitta, 170 N.J. 223, 241 (2001). Here, as in the situation described in Harleysville, defendant could not have expected that his behavior would result in anything less than serious injury or even death. There is nothing in this record to suggest that defendant attempted to cause only temporary injury and certainly nothing to cause us to find that possibility was "clearly indicated." The trial judge appropriately charged the jury and there is no basis for disturbing the jury's verdict.

Defendant's attack on his sentence is limited to a claim that "Defendant's sentence was excessive and must be remanded for resentencing because the trial court failed to recognize an appropriate mitigating factor, [N.J.S.A. 2C:44-1b(4),] 'there were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense.'" This argument has no merit.

The judge did, in fact, consider defendant's explanation that his attack was caused by "hallucinations" or becoming "frustrated" or "agitated" as the result of ingesting a prescription medicine "that should have been discarded." She provided a detailed explanation for her decision that the factor was not applicable. She conscientiously examined the aggravating and mitigating factors and settled on a sentence that was not in excess of the then-presumptive sentence.

We have no basis for interfering with the sentence, which was well within the sentencing guidelines. See State v. Jarbath, 114 N.J. 394, 410 (1989) (the power to modify a sentence must be "used only sparingly: when trial courts are 'clearly mistaken' and 'the interests of justice demand intervention and correction.'") (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We cannot say this sentence was clearly mistaken.

Nevertheless, we perceive a defect in the Judgment of Conviction, requiring correction. The Judgment shows that defendant was "sentenced as follows: CT#1&2 - D.O.C. 7 years to serve 85% without parole concurrent." Count 2 charged the fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. The maximum sentence permissible for that crime is eighteen months, N.J.S.A. 2C:43-6(a)(4). At the time of sentencing, there was a presumptive term of nine months. N.J.S.A. 2C:44-1(f)(1)(e). The Judgment of Conviction appears to record a custodial seven-year term, subject to NERA parole disqualification, on both the aggravated assault and the unlawful possession convictions. That term, as applied to the second count would be impermissible, both because it exceeds the maximum sentence and because NERA is inapplicable to a sentence imposed on a fourth-degree crime.

A review of the sentencing transcript reveals that the judge did not impose any term of incarceration on Count 2. The judge's complete sentence on that count was:

On the second count, a 50-dollar Violent Crimes Compensation Board penalty, $75 to the Safe Neighborhood Fund, and his parole supervision, when he completes his period of incarceration, will be three years.

The matter must, therefore, be remanded for the imposition of an appropriate sentence on Count 2 and the correction of the Judgment of Conviction.

The convictions, and the sentence on the charge of aggravated assault are affirmed. The matter is remanded for resentencing on the unlawful possession of a weapon conviction and for the correction of the Judgment of Conviction.

 

Defendant's Notice of Appeal asserts an appeal from the conviction of the fourth-degree unlawful possession charge. No claim respecting that conviction has been briefed and, accordingly, we deem the appeal of that conviction to have been abandoned. Liebling v. Garden State Indemn., 337 N.J. Super. 447, 465-66 (App. Div.), certif. denied, 169 N.J. 606 (2001).

(continued)

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A-1262-04T4

May 30, 2006