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N.J.S.A. 2C:18-2, and second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1). A jury found him guilty of burglary and the lesser-included offense of third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(7). The trial court sentenced defendant to a nine-year term of imprisonment for the burglary, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and merged defendant's conviction for aggravated assault into his conviction for burglary. "> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) The status of this decision is unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1932-06T41932-06T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. BARRY BROWN, a/k/a BENSON BROWN, a/k/a VINNIE BROWN, a/k/a BARRY BENSON BROWN, Defendant-Appellant. ______________________________________________________

Submitted December 9, 2008 - Decided Before Judges Skillman and Graves. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 05-09-2301 and 05-09-2302. Yvonne Smith Segars, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano,
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Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant was indicted for second-degree burglary, in violation of N.J.S.A. 2C:18-2, and second-degree aggravated assault, in violation of N.J.S.A. 2C:43-7.2, and merged defendant's conviction for aggravated assault into his conviction for burglary. The burglary and assault were committed on July 1, 2005. The victim was defendant's former girlfriend, Tonya Peterson, with whom he had two children, aged one and two. The parties were not living together at the time of the offenses. According to Peterson, around 8 a.m., as she was getting ready to go to school and take the children to day care, defendant broke into her apartment, using a butter knife to pry loose the lock to the front door. Defendant then attacked her, punching and kicking, stomping on her face and chest, putting his fingers in her throat and trying to strangle her. This assault took approximately five minutes. After defendant left the apartment, Peterson called 9-1-1. The police came to her apartment and brought her to the hospital, where she was treated for about an hour and a half. Peterson did not suffer serious injuries as a result of the assault. Peterson was also allowed to testify about another assault defendant allegedly committed upon her on June 28, 2005, three days before the July 1st burglary and assault. In that prior incident, which also occurred in the early morning when Peterson was going to school, defendant was standing outside her apartment when she left with the children to walk to a bus stop a block away. Defendant walked alongside Peterson and when they arrived at the bus stop, he started threatening her and gesturing as if he was going to punch her. He allegedly said: "Next time you try to leave that apartment I'm going to have those doors jammed up, and I'll set that whole house on fire." Peterson then called the police on her cell phone. At this point defendant struck her, knocking her and her infant daughter, who was strapped to the front of her body, to the ground. Defendant also allegedly smashed Peterson's cell phone. The police responded to the scene, but no criminal charges were filed as a result of this incident. The police apprehended defendant on July 3, 2005, two days after the burglary and assault, as he was walking back and forth on the street on the same block where Peterson's apartment is located. Defendant did not testify or present any other evidence at his trial. On appeal, defendant presents the following arguments: POINT I: THE TRIAL JUDGE IMPROPERLY DENIED
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THE DEFENSE'S REQUEST FOR A JURY INSTRUCTION OF THE LESSER-INCLUDED OFFENSE OF CRIMINAL TRESPASS. POINT II: THE TRIAL JUDGE ERRED IN ADMITTING THE 404(b) EVIDENCE AND IN ALLOWING THE PROSECUTOR TO INTRODUCE OTHER EXTRINSIC EVIDENCE OF PRIOR BAD ACTS. (Partially Raised Below). A. THE TRIAL JUDGE ERRED IN FINDING THE STATE MET ITS BURDEN IN ADMITTING 404(b) EVIDENCE OF DEFENDANT'S ASSAULT ON JUNE 28, 2005. B. THE TRIAL JUDGE SHOULD HAVE SUA SPONTE STRUCK THE PROSECUTOR'S QUESTIONS WHICH SUBSTANTIALLY IMPUGNED DEFENDANT'S CHARACTER (Not Raised Below). POINT III: THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION. We reject these arguments and affirm defendant's conviction and sentence. I. Defendant's first argument is based on a question the jury asked during deliberations. In its instructions, the trial court submitted third-degree aggravated assault and simple assault to the jury as lesser-included offenses of second-degree aggravated assault. The court did not give the jury any lesser-included offense instruction with respect to the burglary charge. Defendant did not object to the court's omission of such an instruction.

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Shortly after the beginning of its deliberations, the jury asked the following questions: One, what are the definitions of second and third degree burglary? Does second degree burglary imply any of the three levels of assault that the jury must choose between? . . . Secondly, is it an option for the jury to find the defendant guilty of third degree burglary. At this point, for the first time, defense counsel requested the court to instruct the jury with respect to criminal trespass, as a lesser included offense of second-degree burglary. Defense counsel did not argue that there was any basis for instructing the jury with respect to third-degree burglary. His only argument was that the jury could find that defendant had made an unprivileged entry into Peterson's apartment without an intent to commit an assault or other offense, which would constitute trespass, not burglary. The trial court denied defendant's request, stating: I don't see criminal trespass as an alternative in this particular case, because there is just no evidence that [defendant] was simply there and then left the premises. . . . [D]efendant asserts in his defense, he neither entered or assaulted in any way, shape, manner or form. . . . I'm not going to charge [criminal trespass] where the request is tendered at the 13th hour, and only after the jury has broached a question as whether or not there's a possibility of third degree burglary. Because defendant did not request submission to the jury of trespass as a lesser-included offense of burglary before summations and the court's instructions, the trial court was not obligated to "on its own meticulously to sift through the entire record" to determine if a criminal trespass charge might be appropriate. State v. Choice, 98 N.J. 295, 299 (1985). Absent a timely request by defendant, the trial court is only required to instruct the jury with respect to a lesser-included offense if it is "clearly indicated" by the evidence. Ibid. Moreover, even if defendant had made a timely request for this instruction, there was no rational basis for the jury to acquit defendant of burglary but find him guilty of criminal trespass. Peterson testified that defendant broke into her apartment and immediately began viciously assaulting her. Her testimony was the only direct evidence concerning the offense presented at trial. The jury could of course have concluded that her testimony was not credible. In that event, the jury would have been required to acquit defendant. However, we perceive no basis upon which the jury could have found from Peterson's testimony and the other evidence in this case that defendant made an unprivileged entry into her apartment without any purpose to assault her. II. The argument presented under Point II(A) of defendant's brief is directed at the trial court's pretrial ruling allowing Peterson to testify about the alleged assault defendant committed upon her on June 28, 2005, three days before

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the burglary and aggravated assault that were the subject of the indictment. The admissibility of such evidence is governed by N.J.R.E. 404(b), which bars evidence that defendant committed "other crimes" in order to prove he has a criminal disposition, but allows such evidence "for other purposes, such as proof of motive, . . . [and] intent . . . when such matters are relevant to a material issue in dispute." Before admitting evidence under N.J.R.E. 404(b), a trial court must find: 1. The evidence of the other crime [is] relevant to a material issue; 2. It [is] similar in kind and reasonably close in time to the offense charged; 3. The evidence of the other crime [is] clear and convincing; and 4. The probative value of the evidence [is] not be outweighed by its apparent prejudice. [State v. Cofield, 127 N.J. 328, 338 (1992).] See also State v. Barden, 195 N.J. 375, 389 (2008). In determining that Peterson's proposed testimony regarding the alleged June 28th assault satisfied the four-part Cofield test, the trial court stated: [T]he state of mind of the defendant on July 1, 2005 is at issue. And a prior assault by a defendant upon the very victim, that's the subject of [the] indictment, would go to state of mind. The evidence is also relevant to the issue of motive. That's the first Cofield test. Relevant to a material issue in dispute. State of mind of the defendant and motive. Secondly, is it similar in kind and reasonably close in time. . . . Three, evidence of the prior bad act is clear and convincing. . . . I find that [Tonya Peterson's] testimony was consistent, and I found that she appeared to me to be a credible witness. I think that it would have been easy for her if she were making up a story to make up all of the detailed facts would make her story appear to be similar and here she was very clear on the details. She was clear that the assault took place after she called the police. She was clear that the defendant was angry when she called the police. She was clear over the fact that the defendant had threatened to burn down her house and gestured in a threatening way to her. . . . I find that her testimony is clear and convincing. . . . Lastly, I find that the probative value is not outweighed by its apparent prejudice. Clearly, the evidence of this type is prejudicial to Barry Brown. However, I'm going to ameliorate that prejudice by giving a jury a cautionary instruction when they hear this evidence. I will also give them a cautionary instruction at the conclusion of this case in my final instructions. The trial court gave the jury limiting instructions regarding its use of this evidence both after Peterson's testimony about the alleged June 28th assault and at the end of the trial. Defendant does not challenge the adequacy of those instructions. We affirm the trial court's admission of evidence of the alleged June 28th assault substantially for the reasons stated by the court. An appellate court is required to extend "great deference" to a trial court's decision admitting evidence

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under N.J.R.E. 404(b). Cofield, supra, 127 N.J. at 340. We cannot find an abuse of that discretion in this case. Defendant was charged with second-degree aggravated assault, in violation of 329 N.J. Super. 79, 87 (App. Div.), certif. denied, 165 N.J. 138 (2000); State v. Engel, 249 N.J. Super. 336, 373-74 (App. Div.), certif. denied, 130 N.J. 393 (1991). III. Defendant argues under Point II(B) of his brief that the State presented evidence that impugned his character and was so prejudicial that he is entitled to a new trial. Because defendant did not object to this evidence, its admission is grounds for a new trial only if it was "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). The first part of the State's case to which this argument is directed is the following testimony by Peterson: Q. Tonya, I'm going to ask you about your apartment. How long [did] you live in that apartment? A. For three years. Q. Three years. Was it rented to you? A. Yes. Q. Was Mr. Brown ever on that lease for that apartment? A. No. Q. Did he ever give you money for rent? A. No. Q. Did he ever give you money for your children? A. No. Q. His children? A. No. In addition, defendant argues that the prosecutor made improper use of this testimony in summation, when she argued to the jury: You heard the victim Miss Peterson. She got up there, and said June 28, 2005, she was getting her children ready for day care. Getting ready to go to school learn a trade get a job. Because as you heard her say, Mr. Brown doesn't contribute one time [sic, presumably "dime"] to any of his two children, so she had to take it upon herself to do all these things. ....

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[S]he was just going about her business trying to get dressed. Trying to go to school and provide for her kids. He certainly doesn't. The State was entitled to show that defendant did not pay any of the rent for Peterson's apartment as evidence that he was not privileged to be in the apartment, which is an essential element of wvWare/wvWare version 1.0.3 --> This archive is a service of Rutgers School of Law - Camden. This archive is a service of Rutgers School of Law - Camden.

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