Opinion
DOCKET NO. A-2828-10T2
06-06-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN RASHAWN WRIGHT, Defendant-Appellant.
James S. Friedman, attorney for appellant. Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Assistant Prosecutor, and Linda Claude-Oben, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Accurso.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-06-01073.
James S. Friedman, attorney for appellant.
Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Assistant Prosecutor, and Linda Claude-Oben, Assistant Prosecutor, on the brief). PER CURIAM
Following a jury trial, defendant Steven Wright was convicted of aggravated sexual assault, N.J.S.A. 2C:14-2a(3) (count one) and third-degree burglary, N.J.S.A. 2C:18-2 (count two). Judge Joseph Isabella merged the burglary conviction into the aggravated sexual assault conviction and sentenced defendant to an extended term of twenty-five years, subject to a mandatory eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run consecutive to a ten-year custodial term defendant was serving at the time of sentencing. The judge further sentenced defendant to parole supervision for life pursuant to N.J.S.A. 2C:43-6.4.
Defendant raises the following arguments on appeal:
POINT IHaving considered these arguments in light of the record and existing law, we affirm.
WRIGHT'S CONVICTIONS MUST BE VACATED BECAUSE OF THE PREJUDICE RESULTING FROM THE PROSECUTOR'S INAPPROPRIATE REMARKS MADE DURING HIS CLOSING STATEMENT.
POINT II
WRIGHT'S CONVICTIONS MUST BE VACATED BECAUSE THE INSTRUCTIONS GIVEN TO THE JURY HEARING THIS CASE WERE FATALLY FLAWED.
1. THE JURY CHARGE CONSISTED ALMOST EXCLUSIVELY OF "CANNED" STATEMENTS FROM THE MODEL CHARGES, AND FAILED TO INCLUDE SUFFICIENT FACTUAL INFORMATION UNIQUE TO THIS CASE. (Not raised below)
2. THE PORTION OF THE JURY CHARGE CONCERNING THE IDENTITY OF THE ASSAILANT IN THIS CASE MISSTATED AND/OR MISCHARACTERIZED WRIGHT'S DEFENSE. (Not raised below)
3. THE COURT'S RESTATEMENT OF THE CHARGE CONCERNING AGGRAVATED SEXUAL
ASSAULT WAS HOPELESSLY CONFUSING. (Not raised below)POINT III
WRIGHT'S CONVICTIONS MUST BE VACATED BECAUSE OF THE CUMMULATIVE EFFECT OF THE ERRORS THAT OCCURRED DURING HIS TRIAL.
The facts adduced at trial were relatively uncomplicated. The victim, twenty years old, had just moved into her own apartment in Jersey City. The apartment was a sparsely furnished one-bedroom in the basement of a three-story brownstone. The front door was located beneath the brownstone's front stairs and opened into the living room in which there were two double hung windows facing the street. One of the windows opened into the living room, the other opened into a small closet in the living room built to enclose some water pipes. The victim's bedroom was at the other end of the apartment, down a hallway. She lived there alone.
On November 18, 2006, the victim attended a baby shower at 8 p.m. in downtown Jersey City. She left the shower after midnight and rode with friends to the Latin Lounge, a downtown bar. The group then left and the victim met up with her boyfriend, outside a bar called Marjae's. The victim and her boyfriend both testified that they went back to the victim's apartment at approximately 2 a.m. The victim testified that she walked her boyfriend out at 5 a.m., locking the front door behind him. She left the light on in the bathroom and fell asleep on the air mattress in her bedroom with the television on.
She awoke to someone choking her shortly after 6 a.m. The apartment was dark and the television had been turned off. She struggled with her assailant and the two rolled off the air mattress and onto the floor. Her assailant threw the victim back onto the air mattress on her stomach and sexually assaulted her.
During the assault, the assailant's cell phone rang. The victim turned back toward him as he answered the call. The light from the cell phone allowed the victim to identify her assailant as S.Dot. The victim testified that he left the apartment through the front door shortly after taking the call. When she heard the front door close, the victim got up and ran into the street where she saw a man running away.
The victim immediately called the police and reported that she had been raped. Although specifically advised by the dispatcher not to shower, she did so anyway. She was taken by ambulance to Christ Hospital. The victim had no visible injuries and no useful evidence was recovered from her person. She met with a detective from the Hudson County Prosecutor's Office and identified her assailant as S.Dot, a man she recognized from the neighborhood, and had seen on the street before attending the baby shower the day before. She knew him by no other name.
Although no evidence was recoverable from her person, police searching the victim's apartment found one of the living room windows had been broken. Both the victim and her boyfriend testified that the window had not been broken when he left the apartment at 5 a.m. The police also retrieved the victim's pajama top which was stained with blood. As the victim had not been injured in the assault, the blood presumably belonged to her attacker. The police had no information about anyone by the name of S.Dot, however, and beyond sending the victim's shirt to the State Police Lab for analysis, the investigation stalled.
The victim called the Prosecutor's Office several times over the ensuing months to learn the status of the investigation and to report that she had seen S.Dot again in the neighborhood. The Prosecutor's Office responded to the area, but could not locate anyone matching his description. Finally, fourteen months after the assault, the blood on the victim's shirt was identified as belonging to defendant Steven Wright, also known as S.Dot. Wright was arrested and charged with the crime.
At trial, defendant admitted having sex with the victim but claimed that it was consensual. He testified that he had known the victim since grade school and that she had been in his younger brother, Antoine's class. He claimed he became reacquainted with the victim in 2006, and that they developed a casual sexual relationship. He claimed that he had had sex with her four times previous to the night in question. Defendant testified that he saw the victim in front of Marjae's on November 19, 2006, and called her several hours later to ask if he could come over. The victim agreed, and defendant had his friend Steve drop him at her apartment with an agreement that Steve would pick him up in thirty to forty-five minutes.
Defendant testified that the victim let him in and that the two had consensual sex. Afterwards, defendant's girlfriend called his cell phone "in the morning time" and the victim became upset when defendant said he had to leave. Defendant testified that the victim took his clothes and threw them into the closet in the living room. The two argued over the clothes and defendant, in frustration, punched the window in the closet, breaking it and cutting his hand. The victim again had the clothes in her hands when defendant finally grabbed them away, brushing his hand against her shirt resulting in the blood later found there. Defendant heard his friend's car horn outside and left the apartment through the front door.
Defendant's brother, Antoine Wright, testified that he and the victim had been classmates in the second or third grade and that he and his brother had long known the victim and her brothers. He also confirmed that his brother and the victim had an intimate relationship and that he had heard them having sex in his mother's apartment on two occasions during the summer of 2006. Wright testified that he confronted the victim after his brother's arrest asking why she denied knowing him and why she had accused him of rape. Wright claimed that the victim did not deny knowing his brother and said, "it don't matter what me and him did, he shouldn't a did that to me."
Davon Parson, a friend of defendant's, also testified that he had known Wright, the victim and the victim's brothers since grade school and that they all saw one another frequently in the same Jersey City neighborhood. Parson testified that he had seen defendant and the victim flirting and hugging on the street in 2006.
The victim testified on rebuttal that she never had any type of relationship with defendant and never knew his name or where he lived. She testified that she recognized Parson from the neighborhood but never knew his name prior to being advised of it by the prosecutor. Finally, the victim testified that Antoine Wright, whom she recognized from the neighborhood as "Ant," had approached her before the trial to apologize for his brother's conduct and to tell her that if she refused to testify, that she "will own him."
On appeal, defendant claims that the prosecutor made remarks during his summation that stigmatized defendant and disparaged defense counsel. Specifically, defendant contends that in addressing defendant's motive and the State's version of the commission of the crime, the prosecutor's comment that "I cannot speak to what somebody like this or why someone like this would do this," stigmatized defendant to the jury. Defendant's objection to this remark was overruled by the court.
Defendant also complains about the prosecutor's use of a puzzle analogy to describe the different versions of the facts presented at trial. After summing up the State's case early in his closing statement, the prosecutor remarked:
So that's what happened. Okay. And it paints this kind of picture, all right. You're left with this picture of what happened. And lawyers sometimes use this analogy of a puzzle, all right, that you need to put the pieces of the puzzle together to get the picture. I would submit to you that I've just given you the picture. All right. And the testimony and the evidence and the exhibits were all those pieces that went together to form this picture.Defense counsel did not object to these remarks. Later, after turning his focus to the defense case, the prosecutor returned to this theme:
I would submit to you that once you have that picture, the defense is left with a situation where they need to change those pieces, all right. They need to come up with their own pieces that fit together to get the end result, all right. The end result being here a bloody shirt, the end result being a broken window, the end result being a sexual assault, all right.
So, we saw obviously that the defense has put on a case. All right. Put on three witnesses. And [defense counsel] rightly told you that there's no obligation to do that. But he did it, all right. And as I said before, he tried to recreate this puzzle, okay. You're left with a picture of - of a bloody shirt, broken glass, sexual assault allegations, and you need to put together new puzzle pieces to fit together. And that's what he did.Although there was also no objection by defense counsel to these remarks, Judge Isabella called the prosecutor to sidebar to caution him about this tack. Their exchange is, unfortunately, largely inaudible, but it ends with the court warning the prosecutor to "[b]e careful please." The prosecutor went on to assess the credibility of the defense witnesses and to comment on the defense's explanation for the bloody shirt, the broken window, and the sexual abuse allegations, concluding that, "the pieces don't fit."
And I would submit to you, ladies and gentlemen, that he knew what that puzzle looked like. So he had to step back, all right. He had to start from there and reverse his way back. There had to be an explanation for each one of those things, all right.
And I would submit to you that you heard from witnesses. Now if you think about it, you heard the bare minimum.
Defendant claims that the prosecutor's remarks disparaged defense counsel by accusing him of fabricating the defense case, thus damaging his credibility with the jury and depriving defendant of the jury's fair and impartial consideration of the evidence. We do not agree that the prosecutor overstepped his bounds.
We expect prosecuting attorneys in criminal cases to make vigorous and forceful closing arguments to juries. State v. Frost, 158 N.J. 76, 82 (1999). So long as their comments are reasonably related to the scope of the admissible evidence presented during the trial, prosecuting attorneys are afforded considerable leeway in making their summations. State v. Harris, 141 N.J. 525, 559 (1995). Because a prosecuting attorney in a criminal case acts as the state's attorney, however, the prosecutor has a "double calling - to represent vigorously the state's interest in law enforcement and at the same time help assure that the accused is treated fairly and that justice is done." State v. Ramseur, 106 N.J. 123, 323-24 (1987). Hence, a prosecutor must not only be zealous in enforcing the law, but must also "consistently refrain from any conduct that is lacking in the essentials of fair play." State v. D'Ippolito, 19 N.J. 540, 550 (1955).
We reject defendant's contention that the prosecutor's comment that "I cannot speak to what somebody like this or why someone like this would do this," stigmatized defendant, and we agree with Judge Isabella that the remark was unobjectionable. We condemn a prosecutor's derogatory statements about a criminal defendant or his character as misconduct because they play on the jury's passions and attempt to divert its focus from the evidence in the record. See e.g., State v. Roman, 382 N.J. Super. 44, 57 (App. Div. 2005) (unduly repetitive emphasis on the "unthinkable" and the "unspeakable," could well be viewed as an appeal to the jury's passions rather than argument focusing on the facts). Alleged improper remarks made in summation, however, must be judged in context. State v. Vasquez, 374 N.J. Super. 252, 262 (App. Div. 2005).
Judged in context, we view the prosecutor's statement here as merely an isolated and innocuous comment about the State's inability to offer the jury a motive for the crime and not an attempt to inflame its passions or divert its attention from the evidence. The comment came as the prosecutor was theorizing, from the evidence in the record, when the defendant determined to go to the victim's apartment that evening, and how he decided to gain access by breaking the window leading into the darkened closet. Examined in the context in which it was made, it is apparent that the comment was nothing more than the prosecutor's statement that the evidence offered a "when" and a "how" but not a "why." Accordingly, we conclude that the prosecutor's statement constituted fair comment on the evidence and was not misconduct.
We turn next to the prosecutor's puzzle analogy. Lawyers regularly invite juries to view the evidence as pieces of a puzzle that fit together to provide a coherent picture of the guilt or innocence of the defendant. We see nothing inherently objectionable in a prosecutor's use of this type of analogy. See State v. Michaels, 264 N.J. Super. 579, 641 (App. Div. 1993), aff'd, 136 N.J. 299 (1994) (not improper to use a puzzle analogy to argue that defendant was guilty). We note that defense counsel did not object, and the court did not intervene, when the prosecutor embarked on this theme early in his summation, concluding with the remark that the defense, "need to come up with their own pieces that fit together to get the end result, all right. The end result being here a bloody shirt, the end result being a broken window, the end result being a sexual assault . . . ."
But when the prosecutor returned to the theme later in his summation, he referred to defense counsel by name and to the case counsel had presented on behalf of defendant, saying:
he tried to recreate this puzzle, okay. You're left with a picture of - of a bloody shirt, broken glass, sexual assault allegations, and you need to put together new puzzle pieces to fit together. And that's what he did.Judge Isabella shortly thereafter summoned the prosecutor to sidebar, saying, "You can't do that." Although, as we have noted, their exchange is largely inaudible, and no more of the substance of the conversation is available, we surmise that the judge was warning the prosecutor that he was coming perilously close to suggesting that defense counsel had fabricated the defense case.
And I would submit to you, ladies and gentlemen, that he knew what that puzzle looked like. So he had to step back, all right. He had to start from there and reverse his way back. There had to be an explanation for each one of those things . . . .
It could also be that the judge, having heard the "reverse his way back" remark, was seeking to ward off a general tailoring accusation. See State v. Daniels, 182 N.J. 80, 98 (2004) (prohibiting prosecutors from generic accusations of tailoring during summation).
A prosecutor may not "cast unjustified aspersions" on defense counsel. State v. Frost, 158 N.J. 76, 86 (1999). "It is likewise improper for a prosecutor, without support in the evidence, to accuse a defendant of conspiring with his counsel to conceal and distort the truth." State v. Darrian, 255 N.J. Super. 435, 457 (App. Div.), certif. denied, 130 N.J. 13 (1992). An argument that a defense or testimony was "fabricated" is impermissible in the absence of support in the record. State v. Smith, 167 N.J. 158, 179-80 (2001) (adopting the reasoning of the dissent in State v. DiPaglia, 64 N.J. 288, 298-307 (1974) (Clifford, J., dissenting)).
Here, however, there is ample evidence in the record to support the prosecutor's argument to the jury that the defense witnesses fabricated their testimony. After the judge's admonition, the prosecutor stopped discussing defense counsel and proceeded to discuss the credibility of the defense witnesses. He questioned whether it made sense that the victim would have made up these allegations and pursued the case for so long because she got angry at a man, with whom she was allegedly having only the most casual of sexual relationships, for taking a call from his girlfriend and leaving her apartment after wresting his clothes away from her. He highlighted the inability of the defense witnesses to provide any detail of their alleged encounters with the victim; the implausibility of defendant's testimony that he called the victim after 5 a.m. and that she agreed to allow him to come over after having spent the night with her boyfriend; the incredibility of defendant's ability to remember exactly what he was wearing, not only that night, but also the day before and the day after, over three years later when testifying at trial; and, finally, the impossibility of his having broken the glass of the window from inside the apartment, pulling his fist back so quickly as not to have damaged the outside screen, as he testified, resulting in the broken window glass the police found beyond the screen and outside the apartment. The prosecutor concluded by noting that the defense had an explanation for the broken window, the bloody shirt and the sexual assault allegations, "[b]ut the pieces don't fit."
After review of the entire trial record, we conclude that the prosecutor's remarks here, based as they were on the evidence in the record, were fair comment and not improper. "Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial, the issues presented, and the general approaches employed." State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). While we conclude that the prosecutor did not overstep the bounds of vigorous advocacy in this instance, we also conclude that Judge Isabella was correct to intervene and address the prosecutor about his remarks.
A prosecutor must not demean or disparage the role of defense counsel or cast aspersions upon a lawyer's motives in summation. Darrian, supra, 255 N.J. Super. at 457 (citing State v. Thornton, 38 N.J. 380, 397 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L.Ed. 2d 1039 (1963)).
Supervision and control of all trials are in the hands of the judge. It is essential to the administration of justice that he be acutely responsive to the task. In criminal proceedings particularly, where a person's life or liberty is at stake, whenever a prosecutor exceeds the bounds of propriety or fair play in his summation, the trial court should intervene decisively whether or not an objection is made by the defendant.
rThornton, supra, 38 N.J. at 400.]
We are satisfied that Judge Isabella was appropriately responsive to the risk that the prosecutor's remarks could devolve to denigration of defense counsel and that the judge's timely intervention insured that the prosecutor's focus remained on the credibility of the witnesses defense counsel presented. Thus we perceive no error in the prosecutor's summation.
We turn next to defendant's complaints about the jury charge. Defendant contends that the judge's charge was deficient in several respects. He argues first that the judge insufficiently molded the charge to the facts of the case. It is, of course, axiomatic that "[a]ccurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial." State v. Concepcion, 111 N.J. 373, 379 (1988). Further, we recognize that it may at times be necessary for the court to go beyond the Model Jury Charges when the bare statement of law, divorced from the facts, could confuse or mislead the jury. State v. Robinson, 165 N.J. 32, 42 (2000). In those instances, "the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case." Concepcion, supra, 111 N.J. at 379. Nevertheless, not every case consists of facts so complex or confusing as to require an intricate discussion in the charge. State v. Morton, 155 N.J. 383, 422 (1998).
Defendant did not request that the trial judge incorporate more of the facts into the proposed charge and pronounced himself satisfied with the charge as delivered. Accordingly, we review the claim under a plain error standard. R. 2:10-2. As applied to the trial court's instructions, plain error requires a showing of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v . Hock, 54 N . J . 526, 538 (1969), cert. denied, 399 U . S . 930, 90 S . Ct . 2254, 26 L . Ed . 2d 797 (1970). We do not find such error here.
As we noted previously, the facts of this case were relatively uncomplicated. The outcome rested simply on whom the jury believed. The prosecution contended that defendant, a man the victim recognized from the neighborhood, but did not know, broke into the victim's apartment and forcibly raped her. The defense contended that the victim and defendant had known one another for years, that the two had a casual sexual relationship, that the victim invited defendant into her apartment the night she claims she was attacked, that the two had consensual sex, that they argued afterwards, and that the victim made up the sexual assault allegations.
Both defense counsel and the prosecutor made vigorous closing arguments expounding on those themes and aggressively attacking the credibility of the other's witnesses. In light of the straightforward and uncomplicated nature of the facts and the law controlling the charge, we do not deem it necessary for the trial judge to have woven more of the facts into his instruction to the jury. See State v. Biegenwald, 106 N.J. 13, 44-45 (1987) (judge need not comment on facts to the jury when evidence not overly complex or confusing). On the contrary, we are satisfied that the jury was made aware of defendant's theory of the case, and that the court's charge provided the jury with the opportunity to accept or reject that theory. Morton, supra, 155 N.J. at 423. Accordingly, we find no error.
Our conclusions regarding defendant's claim that the judge failed to mold his instructions to the facts of the case apply with equal force to defendant's contention that the court's identification charge mischaracterized his defense. Identification was a key issue in the prosecution's case. The victim was awakened from sleep in a dark basement apartment and was able to identify her attacker only by the light of a cell phone when her assailant took a call in the course of the assault. Our case law requires as a matter of general procedure that a model identification charge be given in every case in which identification is a legitimate issue. State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003). Defendant acknowledges that the State was entitled to an identification charge. He argues only that the manner in which the court charged the jury on identification undercut his defense. We disagree.
Defendant contends that the language of the model charge which begins by noting that "[d]efendant, as part of his general denial of guilt, contends the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he is the person who committed the alleged offense," effectively instructed the jury to ignore his sole defense of consent and focus instead on his identity as a person who had sexual relations with the victim on the night of the alleged attack, a fact he did not dispute. He argues that the instruction on identification asked the jury to consider the wrong issue, whether he was the man who sexually penetrated the victim instead of whether such act was done without her consent.
Defense counsel made no objection to the court's inclusion of the Model Charge on identification in the instructions to the jury. After the court delivered its charge, however, defense counsel asked to be heard at sidebar on the defense theory of consent. Counsel expressed his concern over the lack of any mention of consent in the Model Charge for aggravated sexual assault during the commission of a burglary. Counsel asked that the jury be advised that in order to convict defendant, the State must prove that the sexual penetration was without the consent of the victim. Judge Isabella readily agreed and, in the course of discussing the verdict sheet, advised the jury that:
With respect to the first charge on sexual assault during the commission of a burglary, of course it has to be a sexual penetration without consent of the victim. If I didn't say that specifically, of course that's the law, and clearly that's an element the State has to prove.Thus the court concluded its instructions with a clear statement underscoring the defense theory of the case, which defense counsel acknowledged in noting that he had no objection to the charge, "corrected" as he had requested.
As Judge Skillman explained in State v. Walker, there are significant differences in the court's obligation to instruct the jury on the applicable law and the guidance it is to provide the jury to assist it in performing its fact-finding obligations. 322 N.J. Super. 535, 546-47 (App. Div.), certif. denied, 162 N.J. 487 (1999). Because general and special credibility instructions relate to the jury's fact-finding role, both the prosecutor and defense counsel are free to comment at length to the jury as to the criteria applicable to its evaluation of the credibility of the witnesses. Id. at 547. Accordingly, in determining whether the trial court committed reversible error in instructing the jury on a special credibility issue, such as identification, a reviewing court must consider, not only the entire trial record, but also the prosecutor's and defense counsel's summations. Ibid.
As we have already noted, counsel in their summations thoroughly expounded on their divergent views of the facts in evidence and the credibility of the witnesses. We view it as highly unlikely that the jury, which sat through days of trial in which the prosecution presented a case of forcible rape by an unknown assailant and the defense countered that the complaining witness was willingly engaged in a consensual sexual relationship with the defendant, was confused by the identification charge so as to be unaware that defendant could not be convicted of aggravated sexual assault without the State proving that the sexual penetration was without the victim's consent. See Walker, supra, 322 N.J. Super. at 550 ("highly unlikely that a jury which sat through a two-and-a-half week trial in which the primary evidence was victim identification testimony, and then heard summations which discussed those identifications at length, was unaware of the specific identifications covered by the identification instruction"). While it is possible that the identification charge could have been more closely tailored to the facts of the case, plain error does not arise from jury instructions that are not incorrect but merely capable of improvement. State v. Delibero, 149 N.J. 90, 106-07 (1997).
Defendant further contends, also in an argument not raised at trial, that the court's restatement of the charge concerning aggravated sexual assault was hopelessly confusing. We disagree.
After commencing deliberations, the jury sent a note asking the court, among other things, to define aggravated sexual assault and sexual assault. After discussing the question and his proposed response with counsel, the judge responded by re-reading the charges, first for sexual assault, followed by aggravated sexual assault. The judge then concluded by saying, "So, between the two charges, the only difference is aggravated sexual assault has a burglary component. Without the burglary, if all other elements are met, then it's sexual assault."
Sometime later, the jury sent another note asking, "On the count two burglary, does mental anguish qualify as 'bodily injury,' yes or no?" Again, after discussing the question and his proposed response with counsel, the court responded to the jury by saying:
The question was pertinent to the grading of the burglary charge. Burglary is a crime of the second degree if in the course of committing the offense the actor "[p]urposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone[.]" Otherwise burglary is a third-degree crime. After hearing the judge's instruction, the jury convicted defendant of the third-degree crime.
--------
On count two burglary, does mental anguish qualify as bodily injury.
Couple things. Before I gave you the definitions of aggravated sexual assault and sexual assault, and I told you the only difference was the burglary component in the aggravated, okay.
What I neglected or forgot to tell you was is that it doesn't matter what level the burglary for aggravated sexual assault, it's any burglary for the aggravated sexual assault. Number One.
Number two, as to answer your question, I'm going to redefine bodily injury for you. The phrase bodily injury means physical pain, illness or impairment of physical condition. That's what bodily injury means, okay?
The court's responses to these questions were clear and accurate and provided the jurors with specific responses to the questions they asked. No more was required. See State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994) (when a question from the jury is direct and simple to answer, the judge may simply repeat the appropriate portion of the instructions). We find no error in Judge Isabella's response to the jury here, much less one clearly capable of producing an unjust result. R. 2:10-2.
Finally, defendant contends that his convictions must be vacated because of the cumulative effect of the errors occurring during his trial. We reject this argument. It is well- established that "incidental legal errors, which creep into the trial but do not prejudice the rights of the accused or make the proceedings unfair" may not be invoked to upset defendant's otherwise valid conviction. State v. Orecchio, 16 N.J. 125, 129 (1954). As a review of the entire trial proceedings convinces us that no other type of error is present on this record, reversal on this ground is unwarranted.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION