Opinion
DOCKET NO. A-3009-12T3
03-17-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELKAIND ADAMES, a/k/a EB ADAMES, Defendant-Appellant.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-04-0478. Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief). PER CURIAM
Defendant was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5), resisting arrest, N.J.S.A. 2C:29-2(a)(3) and second-degree eluding, N.J.S.A. 2C:29-2(b), following a jury trial. The convictions arise from an incident that began when defendant exited his car at a red light and began to pound his fists on the window of a truck and scream at the occupant, an off-duty police officer, whom he mistakenly believed to be someone else. In this appeal, defendant challenges his convictions for aggravated assault and resisting arrest.
The sole issue on appeal concerns the admission of testimony regarding statements made by defendant's wife at the scene. Defendant has abandoned his argument that the admission of this testimony violated the Confrontation Clause, U.S. Const., amends. VI and XIV; N.J. Const. art. I, ¶¶ 1, 9, 10. His argument is therefore limited to contending it was plain error for the trial court to admit this evidence because, in effect, the State was permitted to introduce statements of defendant's wife it could not elicit directly from her because of the bar imposed by N.J.R.E. 501(2) and N.J.R.E. 509.
We conclude this argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.
The statements attributed to defendant's wife were made within earshot of the witnesses, while she was reacting to a highly charged set of circumstances precipitated by defendant's conduct, and were not confidential communications protected by N.J.R.E. 509. Defendant's failure to object to this testimony at trial precluded his adversary from arguing for its admissibility under the Rules of Evidence and deprived the judge of the opportunity to rule on such an objection or set forth his reasons for allowing the testimony. Therefore, we must only decide whether the admission of this testimony was an error "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. We conclude that it did not, given the compelling evidence of defendant's guilt, which included testimony from the police officer he assaulted and a disinterested third party who was also stopped at the traffic light and observed defendant's conduct.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION