STATE OF NEW JERSEY v. OSAHETIN OLIHA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4044-05T44044-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSAHETIN OLIHA,

Defendant-Appellant.

__________________________________________________________

 

Submitted April 9, 2008 - Decided July 1, 2008

Before Judges R. B. Coleman and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-03-0244.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joe B. Truland, Jr., Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent; (David Hummel, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Osahetin Oliha appeals from a February 14, 2006 judgment of conviction for aggravated assault, contrary to N.J.S.A. 2C:12-1b(1). After reviewing the record in light of the contentions advanced on appeal, we affirm.

On November 22, 2003, a grand jury indicted Oliha for aggravated assault, N.J.S.A. 2C:12-1b(1) and robbery, N.J.S.A. 2C:15-1. On August 9, 2005, the robbery charge was dismissed. Before the matter proceeded to trial, defendant elected to waive his right to a trial by jury. Accordingly, on October 25 and 26, 2005, the aggravated assault charge proceeded before Judge John S. Triarsi, without a jury. Based on the evidence presented, the judge found Oliha guilty of second degree aggravated assault. Thereafter, on February 10, 2006, Oliha made a motion for a new trial which was denied as untimely. That same day, the judge sentenced Oliha to five years in prison with a period of parole ineligibility for eighty-five percent of that sentence, N.J.S.A. 2C:43-7.2. This appeal ensued.

The pertinent facts are as follows. On November 22, 2003, Oliha pulled into an Exxon station on Route 22 in Union, where Raghbir Singh Nandha was working alone. When Oliha arrived at the gas station, he first drove his car to an area where there were vacuums. Oliha then approached Nandha, gave him ten dollars, asked him for four quarters and told him he wanted nine dollars worth of regular gas. After receiving the change and returning to the area near the vacuums, Oliha then moved his car to a gas pump. Soon after Nandha began pumping the gas, Oliha accused him of putting in the wrong type of gas and tried to stop the pump. This led to an altercation between the two men.

Oliha testified that Nandha "shoved [him] real hard" after he stopped the pump and that later "[Nandha] walked up on me and spit in my face, snuck up on me, and I reacted, you know, I punched him, I kicked him."

Nandha, with the assistance of an interpreter, testified that Oliha spit on him, prompting him to walk to his office so he could write down Oliha's license plate number. He further testified that: "When I was walking towards [the office] he pushed me, and that is all I remember. After that, I don't remember anything." The next thing Nandha remembered was waking up in an ambulance enroute to the hospital. When Nandha regained consciousness, he had cuts on his face, a cracked tooth and his face was swollen.

The additional witnesses who testified for the State were Chantell Brochu, a Union Township Police Officer dispatched to the scene of the incident, and Antonio Queylin, a gas station patron who witnessed part of the incident. Officer Brochu testified that when she arrived at the scene, Nandha was "on the ground flat on his back" and he was "laying in a pool of blood, his face was bloodied, and he was dazed and unresponsive." Officer Brochu further testified that she saw Queylin and Oliha at the scene. According to Officer Brochu, Oliha was agitated, flailing his arms and yelling "he provoked me." Officer Brochu observed that Nandha had several large wounds on his head, he was bleeding from his mouth and his face was very swollen.

Queylin testified that when he arrived at the gas station, he observed Oliha "beating up" Nandha. He saw Oliha punch Nandha wildly in the upper body and head, eight to ten times, with a strong level of force. Queylin stated that Nandha could barely defend himself and he did not strike back. Queylin indicated that Nandha fell to the ground and Oliha "kicked [Nandha] about two times. Then he stomped him about two times."

Two other portions of the trial are relevant to this appeal. First, at the beginning of the trial, Judge Triarsi considered a waiver of trial by jury form, signed by Oliha. Oliha, a thirty-four year old biologist with a Bachelor's Degree from Rutgers, acknowledged that his signature was on the form and that he understood that by signing the waiver form, he was allowing the judge alone to decide whether he was guilty or not guilty, rather than leaving that decision to a jury. Oliha stated that he discussed the waiver with his attorney and that he did not have any questions.

Second, at the end of Nandha's testimony, Oliha wanted to ask certain questions. The following colloquy transpired:

THE DEFENDANT: I just want to ask him questions.

THE COURT: That is why you have a lawyer. Talk to your lawyer. If there is a question he will ask it.

THE DEFENDANT: We didn't have an interview before we came in.

At that juncture, the court conducted a brief sidebar conference and then granted a recess so that counsel and defendant could confer before the interpreter was excused. Before they left the courtroom, the following exchange took place:

THE COURT: We'll come back in a few minutes. Don't leave. You talk to each other, gentlemen.

THE DEFENDANT: I understand that. My objection is to represent myself and make him a guide.

THE COURT: That is not how things are done. First, talk to your lawyer and then we will talk.

When the proceedings resumed, defense counsel asked a few questions and defendant again sought to personally question the witness. The judge again urged counsel to talk to defendant, discussed briefly on the record defendant's desire to represent himself, and then granted an extended recess for lunch to permit defendant and his attorney to discuss their differences. When court reconvened, defendant indicated he intended to continue with the assistance of counsel:

THE COURT: [COUNSEL], have you talked to your client about the issues he raised?

[OLIHA'S COUNSEL]: Yes, your Honor.

THE COURT: Are you both on the same page regarding the issues, questions to be propounded at least?

[OLIHA'S COUNSEL]: I think we are.

. . . .

THE COURT: Have you had input into your attorney's discussions?

THE DEFENDANT: Yes.

THE COURT: Are you satisfied, now, with where he is going with this case?

THE DEFENDANT: Yeah.

After establishing that Nandha had returned to work shortly after the incident and he had not sustained any permanent impairment or disability, the trial proceeded to conclusion. On appeal, Oliha presents the following arguments for our consideration:

POINT I: THE DEFENDANT'S CONVICTION FOR AGGRAVATED ASSAULT WAS AGAINST THE WEIGHT OF THE EVIDENCE: ONLY SIMPLE ASSAULT WAS PROVEN BEYOND A REASONABLE DOUBT.

POINT II: THE DEFENDANT'S REQUEST FOR A BENCH TRIAL SHOULD NOT HAVE BEEN GRANTED.

POINT III: THE DEFENDANT'S REQUEST TO TERMINATE THE SERVICES OF HIS ATTORNEY DURING TRIAL SHOULD HAVE BEEN GRANTED.

POINT IV: THE DEFENDANT'S MOTION FOR NEW TRIAL SHOULD HAVE BEEN CONSIDERED AND GRANTED.

Oliha's first argument, that his conviction was against the weight of the evidence, is without merit. Rule 3:20-1 provides that in general,

the trial judge shall not . . . set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

Here, the trial judge sat as the finder of the facts and in accordance with Rule 1:7-4, he stated his findings and conclusions of law.

In his oral decision, Judge Triarsi made the following findings:

[Defendant], who is a very large man . . . did, indeed, use excessive force towards the victim here, not only in punching him repeatedly, where the man did not offer a blow to [defendant], but I find the credible facts are your client, beyond using his hands, used his feet and, indeed, kicked this man in the head once and stomped him in the head once . . . . [T]here was not serious bodily injury caused. The issue is not only is there significant bodily injury caused . . . but was there a purpose, an attempt to commit serious bodily injury, and I find that has been proved to me beyond a reasonable doubt in this case. That is, in the kicking and in the stomping . . . .

. . . .

[B]ased upon the fact of [defendant's] kicking and stomping this man in the head and the upper area of his neck, there is no question that the man was rendered unconscious . . . . [W]hat has been proved in my mind beyond a reasonable doubt is that your client purposely attempted to cause serious bodily injury by, indeed, kicking and stomping this man on the ground as he lay defenseless.

We are to "give deference to those findings of the trial judge which are substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Wakefield, 190 N.J. 397, 495 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Findings by the trial judge are considered binding on appeal when supported by adequate substantial and credible evidence. Having reviewed the transcript of the trial, we are satisfied the trial judge's findings could reasonably have been reached on sufficient credible evidence in the record. "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting Johnson, supra, 42 N.J. at 162). We perceive no clear mistake on the part of the trial judge and no manifest denial of justice.

Also, contrary to defendant's argument, the elements of the crime of aggravated assault were established beyond a reasonable doubt. N.J.S.A. 2C:12-1b provides that "[a] person is guilty of aggravated assault if he: (1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly . . . ." The State did not contend at trial and does not contend on appeal that serious injury was actually caused. Rather, the State contended and Judge Triarsi found on credible, indeed undisputed, evidence that Oliha kicked and stomped Nandha as he lay on the ground. The trial judge concluded that such conduct constituted an attempt to cause serious bodily injury. In spite of Oliha's testimony that he reacted spontaneously and had no intention to harm Nandha, the testimony of Nandha, Brochu, Queylin and Oliha himself provided sufficient evidence that Oliha knowingly or purposefully attempted to cause Nandha serious bodily harm by kicking him and stomping on his head. Moreover, as to that finding, we are obliged to defer to the trial judge's "feel" for demeanor and credibility of the witnesses. See generally Johnson, supra, 42 N.J. at 160-61.

Relying on State v. Battle, 209 N.J. Super. 255, 258-59 (App. Div.), certif. denied, 105 N.J. 560 (1986), Oliha contends that because no serious bodily injury ensued, he cannot be guilty of aggravated assault. This reliance is misplaced, as Battle is distinguishable on the facts. That case concerned an attempt by the defendant to snatch a purse. In doing so, the defendant exhibited an indifference for the victim's physical safety but his conduct did not reflect an intent to cause serious bodily injury. That conduct, the rough encounter with an elderly victim, cannot be fairly equated to the kicking and stomping of a person about the head and upper body as occurred in this case. The indifference exhibited in the purse snatching in Battle was different both in character and apparent objective from the acts committed by Oliha. An actor may be found guilty of aggravated assault for attempting to cause serious bodily injury, even though actual serious injury did not occur. N.J.S.A. 2C:12-1b(1). The trial court expressly found beyond a reasonable doubt that defendant purposely attempted to cause serious bodily injury. We find no reason to disturb that finding.

Oliha's next argument, that the trial court should not have granted his request to waive trial by jury, is likewise without merit. Rule 1:8-1 provides that: "Criminal actions required to be tried by a jury shall be so tried unless the defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and an opportunity to be heard, waives a jury trial." The record amply demonstrates that all of the elements of Rule 1:8-1 were satisfied. Oliha, who requested the waiver at trial, now contends that his request should have been denied because the reasons for his requesting a bench trial were not placed on the record. Rule 1:8-1 does not impose such a requirement, and Oliha does not provide any legal authority to support this contention.

Oliha also contends that he should have been permitted to represent himself. In general, a defendant has the right to reject counsel and represent himself. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562, 566 (1975). Trial courts, however, "indulge every reasonable presumption against waiver of counsel and are discouraged from broaching the subject absent an explicit request from the defendant . . . ." State v. Taylor, 350 N.J. Super. 20, 42 (App. Div.), certif. denied, 174 N.J. 190 (2002). Additionally, a defendant must "clearly and unequivocally" ask to proceed pro se. Id. at 41.

In the present case, Oliha did not "clearly and unequivocally" ask to proceed pro se. Rather, the colloquy set forth earlier in this opinion demonstrates that Oliha clearly wanted to ask a witness some of his own questions. Any remarks suggesting that he wanted to represent himself were made in regard to his desire to ask questions of the victim. In that context, the judge explained the ramifications of proceeding pro se, see State v. Crisafi, 128 N.J. 499 (1992), and even granted an extended recess for lunch, in order for defendant to confer with counsel and consider whether he truly wanted to proceed without counsel. Upon returning to court, Oliha stated, without reservation, that he was satisfied with his attorney. Thus, Oliha's argument must fail.

Lastly, the trial court denied Oliha's motion for a new trial as untimely. That denial was appropriate. Rule 3:20-2 provides that "a motion for a new trial . . . shall be made within 10 days after the verdict or finding of guilty." Oliha's motion was filed more than three months later. Plainly, Oliha failed to adhere to the time prescribed by Rule 3:20-2, and pursuant to Rule 1:3-4(c), that time may not be enlarged by the parties or the court. In short, it was not within the court's discretion to grant the motion.

Affirmed.

 

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A-4044-05T4

July 1, 2008