STATE OF NEW JERSEY v. VAMBAH SHERIFF

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3505-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VAMBAH SHERIFF a/k/a SEKOU

M. SHERIFF,

Defendant-Appellant.

_____________________________

March 24, 2014

Submitted March 12, 2014 Decided

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-09-2090.

Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(3)1; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The judge imposed an aggregate four-year prison term. We affirm.

Defendant attacked the victim with a sharp object, striking him on the back, neck, and above the eye. The police arrived at the scene, observed that the victim was bleeding profusely, and called for an ambulance. When the ambulance arrived, the emergency medical technicians transported the victim to the hospital.

Dr. Trevor Dixon testified at the trial as the victim's treating physician. The doctor described the victim's multiple puncture wounds, indicated that he observed the victim had difficulty breathing, and stated that an x-ray revealed a moderately-sized pneumothorax, a collapse of the lung. Dr. Dixon explained that he inserted a chest tube into the victim's lungs to prevent the injury from becoming a severe tension pneumothorax.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING A STATE'S FACT WITNESS TO TESTIFY AS AN EXPERT, ON ULTIMATE ISSUES OF FACT THAT SHOULD HAVE BEEN LEFT TO THE JURY, WITHOUT ANY NOTICE OR EXPERT REPORT PROVIDED TO THE DEFENSE, AND THEN IN FAILING TO PROVIDE ANY INSTRUCTION TO THE JURY AS TO THE DUAL ROLE OF THE DOCTOR'S TESTIMONY.

A. The Jury Was Not Instructed At All As To The Dual-Role Of The Doctor's Testimony In Violation Of State v. Jackson.

B. The Trial Court Abused Its Discretion In Allowing The Doctor A Hybrid Lay And Expert Witness To Opine On Ultimate Issues Of Fact Which Should Have Been Left For The Jury's Determination.

C. The Trial Court Abused Its Discretion In Qualifying A State's Fact Witness As An Expert In "Emergency Medicine" Because There Was No Expert Witness Report, No Notice, And No Opportunity To Respond With A Defense Expert.

POINT II

THE DEFENDANT'S SENTENCE IS EXCESSIVE BECAUSE THE COURT IMPROPERLY CONSIDERED THE SERIOUSNESS OF THE INJURIES TO THE VICTIM AS AN AGGRAVATING FACTOR WHEN THAT WAS ALSO AN ELEMENT OF TWO OF THE OFFENSES, AND DID NOT STATE ANY REASONS IN BALANCING THE AGGRAVATING AND MITIGATING FACTORS.

After carefully considering the record and the briefs, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following comments.

The admissibility of evidence, including that of expert testimony, is a matter within the sound discretion of the trial court. State v. McGuire, 419 N.J. Super. 88, 123 (App. Div.), certif. denied, 208 N.J. 335 (2011). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J. 138, 147 (2001) (citation and internal quotation marks omitted); see also R. 2:10-2. Here, we see no abuse of discretion in permitting Dr. Dixon to testify in his dual role as a fact-expert witness.

Dr. Dixon can be regarded as a hybrid fact-expert witness who is permitted to testify about his diagnosis and treatment of the victim, and the reasons for the treatment that he provided, including his professional determination that the insertion of a chest tube was necessary to inflate the victim's lungs and to prevent the injury from worsening. See Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 314 (1995) (permitting a treating physician to testify about the cause of the patient's disease or injury, and holding "the characterization of [such] testimony as 'fact' or 'opinion' creates an artificial distinction").

We reject defendant's contention that he was somehow prejudiced by the doctor's testimony. The assistant prosecutor provided the hospital records to the defense approximately one year before the trial started. In advance of the trial, the assistant prosecutor gave defense counsel Dr. Dixon's curriculum vitae and a proffer of the testimony she anticipated eliciting from the doctor at trial. Defense counsel requested an opportunity to voir dire the doctor on his qualifications and, after defense counsel did so, the judge qualified Dr. Dixon as an expert in emergency medicine. The judge then immediately gave to the jury the model jury charge on experts, reminding the jury that "[t]he ultimate determination of whether or not the State has proven the defendant's guilt beyond a reasonable doubt is to be made only by the jury." Defense counsel also had the opportunity to talk to the doctor and to review the victim's medical records before the doctor testified.

Defendant argues that the doctor usurped the jury's role by testifying on the ultimate issues in this case. However, "[t]estimony in the form of an opinion . . . is not objectionable because it embraces an ultimate issue," N.J.R.E. 704, and regardless Dr. Dixon did not render any such opinions here. The State charged defendant with committing second- and third-degree aggravated assault and weapons offenses. The doctor did not opine that the victim's injuries constituted serious or significant bodily injury. In fact, the jury acquitted defendant of the second-degree aggravated assault charge, thereby rejecting the State's contention that the victim suffered from serious bodily injury. And the doctor did not testify that defendant caused the puncture wounds or that a "weapon" was used in the physical altercation.

Regarding the sentence, the judge merged the aggravated assault convictions and the weapons convictions and then imposed two concurrent four-year prison terms. He found that aggravating factors N.J.S.A. 2C:44-1a(3), -1a(6), and -1a(9) substantially outweighed mitigating factor N.J.S.A. 2C:44-1b(11). On this record, there is no reason to second-guess the application of these sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).

Affirmed.

1 The judgment of conviction refers to this conviction erroneously as a third-degree offense. See N.J.S.A. 2C:12-1b (indicating that a conviction under Section b(3) is considered a crime of the fourth degree).