STATE OF NEW JERSEY v. TERRANCE HAIGNEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6535-03T46535-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRANCE HAIGNEY,

Defendant-Appellant.

___________________________________

 

Submitted February 1, 2006 - Decided August 1, 2006

Before Judges Wefing and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

No. 00-11-1809.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, of counsel and on

the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mark P. Stalford,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Tried to a jury, defendant was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), as a lesser-included offense of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). He was acquitted of terroristic threats. N.J.S.A. 2C:12-3. The trial court sentenced defendant to a probationary term of eighteen months, required him to attend anger management counseling and ordered restitution. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Patrick Fasano is a builder who purchased an old hotel located at 17 Seaview Avenue in Ocean Grove. The building was empty and had been boarded up for some time. Fasano bought the building with the intent to renovate it, divide it into eight condominiums and sell the individual units. Defendant signed a contract to purchase one of these condominium units.

The relationship between Fasano and defendant deteriorated as the work progressed. According to Fasano, defendant continually made changes in a manner which interfered with the completion of the project. Fasano considered some of the changes requested by defendant, such as installing a Jacuzzi tub underneath the stairs in a half bathroom, to be unreasonable and/or unworkable. Eventually, he decided he did not wish to deal any longer with defendant, and he instructed his attorney to cancel the contract.

On the afternoon of July 10, 2000, defendant, unaware of Fasano's decision, arrived at the unit with his parents to deliver a kitchen cabinet he had purchased. He found that the unit was locked and that all work had ceased. Alek Yermakov, one of Fasano's contractors on the job, told him that Fasano was working nearby on another project, and defendant and his parents drove to see him. A heated argument ensued, with Fasano offering to return all of defendant's deposit money and defendant insisting that Fasano immediately resume work. According to Fasano, defendant was screaming and cursing at him and trying to provoke a fist fight. Fasano testified that defendant's father tried to calm things down, but defendant was unwilling to listen. Fasano continued that defendant then went to his car and drove up next to Fasano and threatened to kill him. One of Fasano's subcontractors testified that he heard defendant threaten Fasano. Defendant's parents testified and denied that defendant ever made such a threat.

Fasano was concerned that defendant was so angry he would vandalize the unit, and he called Yermakov at the job site and instructed him to make sure the building was secured. Fasano met Yermakov at the corner of Seaview and Beach Avenue, and the two men were standing next to Fasano's van, talking, when defendant pulled up in his car and stopped about forty feet away. Fasano heard the sound of tires screeching and saw defendant driving his car toward him, at a high rate of speed. Fasano tried to get out of the way but was unsuccessful; his left leg was pinned between his van and defendant's car from his knee to his heel. Defendant backed up and drove toward Fasano again. By hopping on his right leg, Fasano was able to get into his van; defendant's car jumped the curb and drove across the lawn. He then backed up and drove away. Yermakov, who suffered a broken toe in the incident, called 911.

The incident was also witnessed by Katherine Vanniel, a twelve-year-old girl who was on the front porch of her nearby home. She testified that she heard screeching tires and a scream. She then saw a car jump the sidewalk, hit another vehicle and leave the scene.

Mr. Fasano suffered a minimally displaced fracture of his left heel bone and a significant soft tissue injury to his foot and ankle. He was on crutches for approximately three months and underwent three months of physical therapy.

Defendant did not testify, but several of his witnesses, including his parents, maintained that Fasano was making very slow progress toward finishing the unit. Defendant's parents agreed that Fasano and defendant had a heated argument. His parents, however, testified that the three left the scene and proceeded to the office of the lawyer who was representing defendant in connection with the purchase, but the lawyer was not available to meet with them to discuss defendant's legal options in the face of Fasano's attempt to cancel the contract. The three purchased cans of soda in a nearby store and agreed to discuss the matter with the lawyer. Defendant and his parents drove off separately, all heading out of town and away from the condominium unit.

On appeal, defendant makes the following arguments, none of which were raised before the trial court.

POINT I THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THE ISSUE OF IDENTIFICATION. (NOT RAISED BELOW)

POINT II THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY DEMONSTRATE THAT KATHERINE VANNIEL WAS COMPETENT TO TESTIFY PURSUANT TO N.J.R.E. 601. (NOT RAISED BELOW)

POINT III THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (NOT RAISED BELOW)

POINT IV THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY INSTRUCT THE JURY WITH RESPECT TO FLIGHT. (NOT RAISED BELOW)

Because none of these issues were raised before the trial court, we must apply the plain error rule embodied in R. 2:10-2.

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

[R. 2:10-2.]

As the Supreme Court explained in State v. Macon, 57 N.J. 325, 336 (1971), "[t]he possibility [of an unjust result] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached."

Defendant complains of two errors in the court's charge to the jury. "[A]ppropriate and proper jury charges are essential to a fair trial." State v. Savage, 172 N.J. 374, 387 (2002) (citing State v. Collier, 90 N.J. 177, 122 (1982)). In a criminal prosecution erroneous instructions regarding issues that are material to the jury's deliberation are reversible. State v. Jordan, 147 N.J. 409, 422 (1997). Instructions to the jury, however, cannot be viewed in isolation; a trial court's charge must be examined as a whole to determine if defendant's conviction should be set aside. Savage, supra, 172 N.J. at 387.

The first error of which defendant complains is the trial court's failure to instruct the jury on the principle of identification. If identification of the defendant is a "key issue," a jury must be instructed on identification, even in the absence of a request from the defendant. State v. Cotto, 182 N.J. 316, 325 (2005). In Cotto, the Court said that identification is such a key issue when it is "the major . . . thrust of the defense." Ibid. (quoting State v. Green, 86 N.J. 281, 291 (1981)).

Here, although the trial court did not mention identification at all in its charge, we are satisfied the failure to do so provides no basis to reverse defendant's conviction. Defendant did not argue misidentification at trial; indeed, he could hardly do so in light of the testimony of his own parents who corroborated Fasano's testimony about the heated argument between the two men. The trial court, moreover, in its charge repeated several times that the jury had to find beyond a reasonable doubt that defendant was guilty of the crimes charged. Because identification was not material, Jordan, supra, 147 N.J. at 422, we can perceive no reasonable basis to conclude that the omission of a charge on identification led the jury to reach a verdict it might not have reached otherwise.

Defendant also urges that the trial court erred in the manner in which it charged the jury about flight. Defendant's contention is not that the court should not have given an instruction on flight at all but that the instruction was deficient in that it was not molded to the testimony given during the trial.

Defendant points to State v. Concepcion, 111 N.J. 373, 380 (1988), in which the Supreme Court stated that "[i]ncorporating specific evidentiary facts into a jury charge is especially helpful in a protracted trial with conflicting testimony." Here, testimony was presented to the jury over the span of four days, a period of time which can hardly be characterized as protracted. Although the testimony of the witnesses conflicted in some regards, that is hardly unusual, given the vagaries of human recollection and observation.

It is of particular importance that a charge be molded to the facts when "the statement of the relevant law . . . divorced from the facts [is] potentially confusing or misleading to the jury." State v. Robinson, 165 N.J. 32, 42 (2000). We do not see a realistic potential in the present case that the jury was confused or misled by the charge delivered by the trial court.

The charge that was given was unexceptionable. We see no plain error.

As we noted earlier, one of the individuals who witnessed defendant's attack upon Fasano was a young girl, Katherine Vanniel, twelve years of age. She testified about her observations. Defendant now complains that the trial court erred in not exploring at greater length her competency to testify. When she took the stand, the following colloquy took place between the witness and the trial court:

Q. How old are you?

A. Twelve.

Q. And what grade are you in?

A. Seventh.

Q. We just administered an oath. Do you know what that is?

A. Not really.

Q. You have to tell the truth; right?

A. Right.

Q. And what happens to you if you're caught not telling the truth? What happens?

A. You get in trouble.

Q. Right. Okay.

Defendant relies upon cases such as State v. Krivascka, 341 N.J. Super. 1 (App. Div.), reh'g denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002), and State v. Zamorsky, 159 N.J. Super. 273 (App. Div. 1978), certif. denied, 82 N.J. 287, cert. denied, 449 U.S. 861, 101 S. Ct. 172, 66 L. Ed. 2d 78 (1980), in support of his contention that this examination was inadequate to demonstrate her competency to testify. In our judgment, these cases do not support defendant's argument.

In Krivascka, the defendant was convicted of aggravated sexual assault, aggravated criminal sexual contact and endangering the welfare of a child. Krivascka, supra, 341 N.J. Super. at 11. His victims were two boys thirteen years old, both of whom suffered significant mental deficits. Ibid. One was estimated to have an IQ between fifty and sixty, Id. at 12, the other from forty-nine to the low fifties. Id. at 16. Even in the face of such obvious deficits, we upheld the trial court's determination that both boys were competent to testify. Id. at 36-37. We noted that every person is presumed competent to testify, Id. at 36, and that the test for a reviewing court is whether the trial court abused its discretion. Ibid.

State v. Zamorsky, supra, is similar. The defendant in that case was convicted of impairing the morals of a minor. Zamorsky, supra, 159 N.J. Super. at 278. His victims were two six-year-old girls. Ibid. We again upheld the trial court's determination that each of these girls was competent to testify against the defendant. We stated that the trial court's determination in this regard is "largely a matter of discretion [and] will not be set aside unless plainly shown to have been made without evidence to support it." Id. at 280.

Here, defendant makes no complaint about the witness's actual competence, only about the truncated inquiry by the trial court before she commenced her substantive testimony. Although it might have been preferable for the trial court to have gone into further detail, we have reviewed the transcript of her testimony, and we see no indication that any more searching inquiry was necessary before Ms. Vanniel was permitted to testify about her observations.

Defendant's final argument is that certain of the prosecutor's remarks in her summation unfairly commented upon defendant's right not to testify. Clearly, a prosecutor may not in summation, whether overtly or subtly, refer or draw attention to the decision of a defendant not to testify. State v. Engel, 249 N.J. Super. 336, 382 (App. Div.), certif. denied, 130 N.J. 393 (1991). "When a prosecutor's comments indicate or imply a failure by the defense to present testimony, the facts and circumstances must be closely scrutinized to determine whether the defendant's Fifth Amendment privilege to remain silent has been violated and his right to a fair trial compromised." State v. Cooke, 345 N.J. Super. 480, 486 (App. Div. 2001), certif. denied, 171 N.J. 340 (2002).

We have carefully reviewed the prosecutor's summation in the light of defendant's argument. We are satisfied that it does not support the strained construction defendant now places upon it.

The trial court, moreover, carefully included in its charge an instruction that the jury could not consider during the course of their deliberations that defendant had chosen not to testify. It is presumed that the jury followed this instruction. See Richardson v. March, 481 U.S. 200, 211, 107 S. Ct. 1702, 1709, 95 L. Ed. 2d 176, 188 (1987).

Defendant's conviction is therefore affirmed. During the course of our review of this matter, we noted an error in the judgment of conviction, which states that defendant was convicted of third-degree aggravated assault under N.J.S.A. 2C:12-1b(1). Aggravated assault under N.J.S.A. 2C:12-1b(1) is a second-degree crime and is the offense for which defendant was indicted. Defendant was, in fact, convicted of the lesser-included offense of third-degree aggravated assault under N.J.S.A. 2C:12-1b(7). We remand the matter for entry of an amended judgment of conviction.

Defendant's conviction is affirmed. Remanded for entry of an amended judgment of conviction.

 

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A-6535-03T4

August 1, 2006