Opinion
DOCKET NO. A-4672-13T1
02-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GEORGE A. GREENWOOD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-09-1612. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant George A. Greenwood was indicted on charges of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2); third-degree terroristic threats, N.J.S.A. 2C:12- 3a; third-degree criminal restraint, N.J.S.A. 2C:13-2a; 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 jury convicted him of criminal restraint and unlawful possession of a weapon, and the judge sentenced defendant to five years in State prison on the criminal restraint conviction and an eighteen-month concurrent term on the weapons charge. Defendant appeals, contending the prosecutor engaged in misconduct and the sentence is excessive. We affirm.
The State's proofs at trial were that defendant, who was in his early sixties, and his girlfriend shared a house in Howell with two other people, a man who was about five years younger than defendant, and the man's girlfriend. The four were friendly and defendant's male housemate, who ran a business from a workshop in a garage on the property, often drove defendant to doctor's appointments or on other errands. One day in the summer, defendant went out to the man's workshop and told him their elderly neighbor was looking for him. As his housemate walked towards the door to exit the shop, defendant pulled a knife on him.
The housemate testified that defendant pressed the knife to his throat and ordered him to get into the pickup truck. The man offered to drive defendant anywhere he wanted to go so long as he got rid of the knife. According to the housemate, defendant said he needed to go to the hospital because he "need[ed] some pills for the pain." Defendant eventually tossed the knife into the grass and the two drove to the hospital.
Once at the emergency room, defendant's housemate alerted hospital personnel to the situation and defendant was detained by hospital security. The housemate returned home and called the police. An officer responded and recovered the knife from the grass where defendant had discarded it. The officer then proceeded to the hospital to interview defendant. The officer testified that defendant told him that "everything [his housemate] told me was the true."
Defendant claimed his housemate had fabricated the claim because he was afraid defendant would report certain alleged violations of the man's parole to authorities. He told the jury he suffered from anxiety attacks so severe that he would be afraid to even go outside. On the day of the incident defendant claimed to have been suffering from an attack and unable to find his medication. He thus wanted his housemate to take him to the hospital. When he could not locate him in the house, defendant went out to the shop to look for him. He admitted he did something "stupid" and "grabbed a kitchen knife" because "he had to go outside to get to the garage," but insisted he told his housemate "no this ain't for you."
Defendant told the jury he never threatened his housemate with the knife or assaulted him. As for the officer's testimony, defendant claimed the officer had only asked him whether it was true he had a knife, as his housemate had reported. Although admitting it was true he had a knife, defendant denied confirming the rest of his housemate's report to the officer. The jury acquitted defendant of aggravated assault, terroristic threats and possession of a weapon for an unlawful purpose and convicted him of criminal restraint and unlawful possession of the knife.
Defendant raises the following issues on appeal.
POINT I
THE TRIAL COURT MISAPPLIED ITS DISCRETION AND COMMITTED HARMFUL ERROR IN PERMITTING THE PROSECUTOR, OVER TRIAL COUNSEL'S OBJECTION, TO ASK DEFENDANT DURING CROSS-EXAMINATION IF THE STATE'S WITNESSES WERE "LYING."
POINT II
DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL "OVERZEALOUSNESS" IN SUMMATION.
POINT III
THE FIVE (5) YEAR BASE TERM IMPOSED ON DEFENDANT'S CONVICTION FOR CRIMINAL
RESTRAINT ON COUNT THREE WAS MANIFESTLY EXCESSIVE.We reject those arguments and affirm defendant's conviction and sentence.
We turn first to defendant's claim that his conviction should be reversed because of the trial court's error in permitting the prosecutor, over defense counsel's objection, to ask defendant on cross-examination if the State's witnesses were "lying." We agree that the court erred in not sustaining counsel's objection to those questions. It is well established that asking a witness to assess the credibility of another witness is prohibited. State v. Bunch, 180 N.J. 534, 549 (2004); State v. Frisby, 174 N.J. 583, 594 (2002). Accordingly, asking defendant whether other witnesses were "lying" was highly improper. See State v. Green, 318 N.J. Super. 361, 377-78 (App. Div. 1999), aff'd, 163 N.J. 140 (2000).
Although this case clearly turned on the jury's assessment of the credibility of the witnesses, we do not find the error one capable of producing an unjust result. In addition to the court's clear instruction to the jury on how it was to assess credibility, thereby ameliorating any prejudice which might have resulted from the prosecutor's cross-examination, see State v. T.J.M., 220 N.J. 220, 237 (2015), the jury acquitted defendant of aggravated assault with a deadly weapon, terroristic threats and possession of the knife for an unlawful purpose, reinforcing our conclusion that the error did not deprive defendant of a fair trial. See State v. Dellisanti, 203 N.J. 444, 462-63 (2010). Defendant's argument that the prosecutor overstepped her bounds in summation by interjecting her personal beliefs and attempting to diminish the State's burden of proof do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
We also reject defendant's argument that his five-year sentence, the top of the range for the third-degree crime of criminal restraint, is excessive. "Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). The judge considered defendant's prior criminal record and found that aggravating factors three, the risk that the defendant will commit another offense, N.J.S.A. 2C:44-1a(3); six, the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1a(6); and nine, the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1a(9), outweighed the non-existent mitigating factors.
We are satisfied that the judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION