Opinion
DOCKET NO. A-5171-12T1
01-12-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JUSTIN M. HARBRIGHT, Defendant-Appellant.
Jacobs & Barbone, P.A., attorneys for appellant (Louis M. Barbone, and YooNieh Ahn, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (John Santoliquido, assistant prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-07-1640. Jacobs & Barbone, P.A., attorneys for appellant (Louis M. Barbone, and YooNieh Ahn, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (John Santoliquido, assistant prosecutor, of counsel and on the brief). PER CURIAM
Following a bench trial, defendant Justin M. Harbright appeals from the Law Division judgment of conviction finding him guilty of simple assault, N.J.S.A. 2C:12-1a(1). He also appeals from orders denying his motion to compel admission into the Pretrial Intervention Program (PTI) and denying his motion to dismiss for lack of a speedy trial. For the reasons that follow, we affirm.
I.
We discern the following facts from the record. On April 24, 2010, defendant attended a barbeque in Somers Point. While defendant was tossing a football with a group of men, E.C., C.V., and C.G. stopped nearby in E.C.'s car. The football struck E.C.'s car, and E.C. exited her vehicle to confront the men and demand an apology. No apology was given and heated words were exchanged. Upon observing this exchange, C.G. exited the vehicle and identified himself as a New Jersey State Trooper.
We utilize initials and pseudonyms to protect the victim's privacy.
In response, defendant attempted to push C.G. and swat the State Police identification card out of his hand. When defendant followed with a wild punch, C.G. restrained defendant in a compliance hold, and informed him that he was under arrest. Defendant's friends responded by attacking C.G., breaking his hold on defendant. As a result, both men were knocked to the ground. After the persons involved in the melee dispersed, C.G. was curled up in the fetal position on the ground, and defendant had fled a short distance.
At trial, E.C. and C.V. testified that defendant then returned, kicked C.G. in the head one last time, and spat on him, before again retreating. Defendant's friend, M.M., testified that defendant never returned to kick C.G. C.G. testified that he could not recall any specific events between curling up on the ground and the arrival of the ambulance.
E.C., C.V., and C.G. all admitted to having had a few beers. M.M. testified that he had only had one beer. Although defendant did not testify at trial, the State introduced the video recording of a statement he gave to police. In the statement, defendant admitted to drinking fifteen beers that day. Defendant claimed that he never heard C.G. identify himself as a trooper, and that C.G. had pushed him first. He further denied trying to punch C.G. He did admit that he kicked C.G. in the face, but only "out of self-defense" when C.G. refused to let go of his ankle.
On July 27, 2010, an Atlantic County grand jury returned an indictment charging defendant with one count of aggravated assault, contrary to N.J.S.A. 2C:12-1b(5). Defendant sought admission into PTI. The program director rejected defendant's application on May 11, 2011, and the court denied defendant's motion to compel entry into the program on September 12, 2011.
"A person is guilty of aggravated assault if he" or she "[c]ommits a simple assault upon . . . any law enforcement officer acting in the performance of his [or her] duties while in uniform or exhibiting evidence of his [or her] authority or because of his [or her] status as a law enforcement officer[.]" N.J.S.A. 2C:12-1b(5)(a).
Trial was delayed several times between April 17, 2012, and July 11, 2012. Meanwhile, the State sought a superseding indictment, and on July 11, 2012, an Atlantic County grand jury returned the indictment, charging defendant with one count of aggravated assault against a police officer, N.J.S.A. 2C:12-1b(5), and one count of aggravated assault, recklessly causing significant bodily injury, N.J.S.A. 2C:12-1b(7).
The first indictment included a co-defendant, Gregory Giblin, charged with committing the same offense as defendant. On January 23, 2012, Giblin pled guilty to an amended charge of simple assault and was sentenced in February 2012, prior to the second indictment.
Defendant filed a motion to dismiss the superseding indictment, arguing that the State had violated his right to a speedy trial. The court denied defendant's motion to dismiss on October 22, 2012, finding that most of the delay was excusable, as attributable to C.G.'s deployment to Iraq on active military duty and to defendant's motion to compel admission into PTI. The court also found there was no indication the delay caused any prejudice to defendant.
C.G. is a member of the Air Force National Guard.
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Defendant again sought admission into PTI. The program director again rejected defendant's application, and the court denied defendant's motion to compel entry on December 10, 2012.
Following a bench trial on April 15 and 16, 2013, the court found defendant guilty of one count of simple assault, N.J.S.A. 2C:12-1a(1). On May 17, 2013, the court sentenced defendant to one year of probation, including anger management courses, random drug testing, and maintenance of full-time employment.
This appeal followed. On appeal, defendant argues:
Point I: There Was Insufficient Credible Evidence on the Record to Support the Trial Court's Finding of Guilt for Simple Assault.
Point II: The Trial Court Erred in Denying Defendant's Motion to Dismiss as Defendant Was Denied His Constitutional Right to a Speedy Trial.
Point III: The Trial Court Erred in Denying Defendant's Motion to Compel PTI on the Superseding Indictment.
II.
When reviewing trial court decisions, we give "substantial deference to the trial court's factual findings, which we must uphold so long as those findings are supported by sufficient credible evidence in the record." State v. Hinton, 216 N.J. 211, 228 (2013) (citations, alterations, and internal quotation marks omitted). We review issues of law de novo. Ibid. "When . . . we consider a ruling that applies legal principles to the factual findings of the trial court, we defer to those findings but review de novo the application of those principles to the factual findings." Ibid.
Here, the trial court credited the State's witnesses, and, in particular, "found [C.G]'s testimony to be extremely credible." The court found that defendant "did come back at the very end of this thing while [C.G.] was down and kick him in the face." The court's findings are well supported by the testimony of E.G., C.V., and C.G., and, with the exception of the final kick, are not materially contradicted by defendant's witness.
Defendant points to several minor inconsistencies between the accounts given by the State's witnesses, as well as variations from their prior statements to police. All of these inconsistencies can be reasonably attributed to the witnesses' differing perspectives of the incident, as well as the ordinary variation that occurs in repeatedly recounting the same incident. Accordingly, we discern no basis to reject the trial court's credibility determinations and fact finding.
A person commits simple assault if he or she "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]" N.J.S.A. 2C:12-1a(1). Here, the court found that defendant swatted C.G.'s hand and threw a punch at him. Then, after the resulting melee, defendant returned to kick C.G. in the head while he was curled up on the ground. Even absent the final kick, defendant's conduct clearly constituted simple assault under N.J.S.A. 2C:12-1a(1). Accordingly, we affirm the trial court's judgment of conviction, finding defendant guilty of simple assault.
As to defendant's motion to dismiss for lack of a speedy trial, the four-factor balancing test articulated in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), controls. State v. Cahill, 213 N.J. 253, 258 (2013). The courts must "consider: (1) the length of the delay, (2) the reasons for the delay, (3) whether and how defendant asserted his speedy trial right, and (4) the prejudice to defendant caused by the delay." State v. Townsend, 186 N.J. 473, 487 (2006). Generally, delays attributable to the defendant, State v. Long, 119 N.J. 439, 471 (1990), or to the unavailability of an essential witness, State v. Tsetsekas, 411 N.J. Super. 1, 12 (App. Div. 2009), are not counted against the State.
Here, defendant filed his motion to dismiss approximately two and one-half years after the underlying incident. The trial court aptly attributed much of the delay to defendant's motion practice and C.G.'s deployment in Iraq. Defendant does not presently dispute this account. Moreover, defendant does not identify any prejudice resulting from the delay. As the delay was not caused by the State, and as defendant was not prejudiced by the delay, we affirm the denial of defendant's motion to dismiss.
Finally, we turn to the denial of defendant's motion to compel entry into PTI. "In order to overturn a prosecutor's [PTI] rejection, a defendant must clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Watkins, 193 N.J. 507, 520 (2008) (citation and internal quotation marks omitted). The prosecutor must assess each defendant's individual "'amenability to correction' and potential 'responsiveness to rehabilitation.'" Ibid. (quoting N.J.S.A. 2C:43-12b).
Here, the PTI program director thoroughly considered defendant's first PTI application and rejected it, citing "the serious nature of this violent offense, the injuries sustained by [C.G.], and [C.G.]'s objection to PTI . . . ." On defendant's second PTI application, the program director summarily noted that "nothing was submitted that would serve to override [the] original decision to reject [defendant]'s application." In denying defendant's second motion to compel admission into PTI, the court rejected defendant's argument that the prosecutor had not sufficiently considered his second PTI application, including his claim that it was "summarily rejected without basis."
Defendant does not identify any change in circumstances between his first and second PTI applications that would have been relevant to the program director's analysis. As the record shows that the program director performed a thorough analysis of defendant's first application, and as defendant presented no new relevant circumstances in his second application, the program director did not grossly abuse her discretion by relying on her first decision and summarily rejecting the second application. Accordingly, we conclude the trial court correctly determined that the prosecutor sufficiently considered defendant's second PTI application and that defendant failed to establish that the denial of his application constituted a patent and gross abuse of discretion. We therefore affirm the denial of defendant's motion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION