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N.J.S.A. 2C:12-1b(1); (2) third-degree aggravated assault (causing or attempting to cause bodily injury with a deadly weapon), N.J.S.A. 2C:12-1b(2); and (3) third-degree possession of a weapon (a broken bottle) with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4d. After merging counts two and three with count one, the judge sentenced defendant to nine years imprisonment with an 85% parole disqualifier and three years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On appeal, defendant argues: ">

Original Wordprocessor Version This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is .)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5820-05T45820-05T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHNSTON D. HAMILTON a/k/a JOHNSON HAMILTON, JERRY D. HAMILTON, Defendant-Appellant. ________________________________________________________________

Submitted May 4, 2009 - Decided Before Judges Lisa and Alvarez. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 03-02-0186, 02-07-0970 and Accusation No. 02-08-0840. Yvonne Smith Segars, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, of counsel and on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, on the brief). PER CURIAM The jury found defendant guilty of all three counts of the indictment: (1) second-degree aggravated assault (causing or attempting to cause serious bodily injury), N.J.S.A. 2C:39-4d. After merging counts two and three with

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count one, the judge sentenced defendant to nine years imprisonment with an 85% parole disqualifier and three years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On appeal, defendant argues: POINT I THE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO CHARGE THE JURY ON "AGGRAVATED ASSAULT/SIGNIFICANT BODILY INJURY" AS A LESSER INCLUDED OFFENSE OF "AGGRAVATED ASSAULT/SERIOUS BODILY INJURY." (NOT RAISED BELOW.) POINT II THE SENTENCE WAS EXCESSIVE: THE SENTENCING COURT IMPROPERLY CONSIDERED THAT THE STATE HAD NOT FILED A MOTION FOR EXTENDED TERM. POINT III THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT ERRED IN PRECLUDING DEFENSE COUNSEL FROM COMMENTING IN SUMMATION THAT THE STATE FAILED TO CALL CERTAIN WITNESSES TO TESTIFY. We reject these arguments and affirm. On the night of August 30, 2002, defendant, then nineteen years old, got into an argument on the streets of Elizabeth with Dhekr Sessoms, who was then about twenty-eight years old. Defendant and Sessoms had known each other for many years. Both had been drinking alcohol that evening. The two called each other names and used profanity. At one point during the argument, defendant picked up some Snapple bottles and threw them at Sessoms' feet. Defendant threatened Sessoms, saying "I'll merk you," which is slang for "I'll kill you." Sessoms replied, "You hit me with one of those bottles, I'm going to fuck you up." The argument appeared to simmer down, and the two men came into the presence of several other acquaintances of both of them. According to Sessoms, he believed the argument was over. Sessoms began to leave the area, when defendant sucker punched him in the face. Sessoms was dazed, but attempted to fight back. The two men scuffled for about one or one-and-one-half minutes. They both fell to the ground at one point. As they were getting up, defendant was attempting to choke Sessoms. The two men separated. According to Sessoms, defendant then grabbed a Heineken beer bottle, which was either already broken or which defendant broke, and stabbed Sessoms in the stomach with it. Sessoms described how his "stomach start[ed] coming out." Defendant exclaimed "Die motherfucker, die." Sessoms said defendant continued coming after him with the bottle, but "[o]nce he seen my stomach coming out, he dropped it." Defendant and his cousin then got in a car and left the area. Sessoms described his wound. He explained his stomach was coming out of his body and looked like "sausage" or

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"ground beef" in his hand. He pushed his stomach back in and asked another one of the individuals there to use a shirt, tie it as hard as he could, and continue pushing his stomach in to hold it inside his body. Sessoms said he was in excruciating pain. He was taken to Trinitas Hospital. He said "[t]hey laid me down on a stretcher and my stomach was in a plate next to me . . . like [an] umbilical cord like on the side of me. All my stomach came out, my stomach was like in a plate next to me. Like a cookie sheet basically." Sessoms underwent emergency surgery. The surgeon testified at trial. He explained that Sessoms had lost forty to fifty percent of his blood and would likely have bled out and died had it not been for the successful surgery. The surgeon further stated that peritonitis likely would have resulted if the wounds were not immediately treated, which could also have caused Sessoms' death. The surgeon described a laceration in Sessoms' anterior abdominal wall of about nine centimeters. When the doctor opened Sessoms up, he was bleeding internally, and four holes were identified in Sessoms' small bowel or small intestine. The surgeon confirmed that "the bowel had come out through the wound." Sessoms remained hospitalized for about thirteen or fourteen days. He has continued to experience pain on an intermittent basis. He bleeds from the rectum sometimes when moving his bowels. He has difficulty controlling his urinary function and sometimes urinates spontaneously and uncontrollably. He was left with a large scar. Defendant testified at trial. According to him, the two men mutually engaged in a scuffle after they argued. Defendant denied stabbing Sessoms with a Heineken bottle or anything else. Indeed, he denied ever picking up a Heineken bottle. He said Sessoms fell down at one point during the scuffle and then got up and ran away, leaving the scene. The defense theorized that perhaps Sessoms cut himself on some broken class in the area when he fell down. The jury obviously did not believe defendant's version. Defendant first argues that the judge should have charged third-degree aggravated assault (causing or attempting to cause significant bodily injury) pursuant to N.J.S.A. 2C:11-1b. "Significant bodily injury" means "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1d. Third-degree aggravated assault under 111 N.J. 293, 299 (1988). However, if a defendant does not request that the jury be given the lesser-included offense, the court need not give it unless the lesser offense is clearly indicated by the evidence. State v. Denofa, 187 N.J. 24, 42 (2006). We have no hesitancy in concluding that the lesser-included offense was not clearly indicated on this record. Sessoms' injury created a substantial risk of death. Further, it caused serious permanent disfigurement by virtue of the substantial scar Sessoms suffered. And, the injury caused protracted loss or impairment of his bodily functions,
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as reflected by his ongoing pain, anal bleeding, and urinary incontinence. Any one of those three characteristics of his injury would qualify as "serious bodily injury." In this case, all three existed. This was clearly not a case of "significant bodily injury," which involves only a temporary loss of the bodily function of any bodily member or organ or temporary loss of any of the senses. There was no error in the failure of the judge to sua sponte charge the lesser-included offense. Defendant's next argument pertains to his sentence. He argues that the judge improperly considered that he was eligible for an extended term sentence as a persistent offender, see N.J.S.A. 2C:44-3a, in deciding upon the appropriate sentence. We do not agree. The judge found the presence of aggravating factors (3), the risk that defendant will commit another offense, (6), the extent and seriousness of defendant's prior criminal record, and (9), the need for deterrence. 117 N.J. 210, 21516 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984). Finally, defendant contends he was denied a fair trial because the judge precluded his attorney from commenting in summation that the State failed to call the eyewitnesses to testify. As we stated, there were several individuals present when the crime occurred. They were friends or relatives of both combatants. These individuals were equally accessible to defendant and the State. Indeed, defendant stated he intended to call one of them, but that individual did not show up at trial. There is nothing in the record to suggest that had any of them testified their testimony would have been favorable to defendant or adverse to the State. In his opening statement, defendant's attorney told the jury that both sides agreed there was a fight and "[t]here was a falling to the ground." He then said: "There were several other people that were out there. We'll agree on that. None of those other people apparently are going to come in and testify that [defendant] did this." Thus, it was apparent to defense counsel at the commencement of trial that the State had no intention of calling any of the other witnesses. Prior to summations, the State asked the court to rule that defendant could not comment on the State's failure to call other witnesses. The judge asked defense counsel if he intended to comment. He answered affirmatively. The judge noted that these witnesses were equally available to both sides. She directed that neither attorney comment regarding their absence. Defendant's attorney replied: "Fair enough, Judge." In his summation, defense counsel generally argued a failure of the State to prove its case beyond a reasonable doubt. The judge gave the standard reasonable doubt charge, which included the instruction that reasonable

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doubt can arise from the evidence or a lack of evidence. Because defense counsel acquiesced in the judge's ruling, we are guided by the plain error standard, under which we will not reverse unless any error was "clearly capable of producing unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice, but the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). That standard was not met here. The jury would not have been swayed to a different result by a comment pointing out the obvious, that the State failed to call as witnesses any of these individuals, all of whom were friends or relatives of both combatants. Any error was harmless beyond a reasonable doubt. Affirmed. The initial notice of appeal listed only Indictment No. 03-02-0186. In an amended notice of appeal, defendant further listed Indictment No. 02-07-0970 and Accusation No. 02-08-0840, but in his appellate brief, he has made no arguments regarding these two matters. (continued) (continued) 11 A-5820-05T4 June 4, 2009 0x01 graphic

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