STATE OF NEW JERSEY VS. ADRIAN ZIMMERMAN (13-03-0605, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet this opinion is binding only on the

parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5770-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ADRIAN ZIMMERMAN,

Defendant-Appellant.

————————————————————————————————

Submitted April 27, 2017 – Decided May 23, 2017

Before Judges Hoffman, O'Connor and Mawla.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No. 13-

03-0605.

Joseph E. Krakora, Public Defender, attorney

for appellant (Michele A. Adubato, Designated

Counsel, on the brief).

Carolyn A. Murray, Acting Essex County

Prosecutor, attorney for respondent (Frank J.

Ducoat, Special Deputy Attorney General/

Acting Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

On February 14, 2012, an Essex County grand jury returned

Indictment No. 2012-2-439, charging defendant Adrian Zimmerman

with conspiracy to commit second-degree aggravated assault,

N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b)(1) (count one); second-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two);

fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d)

(count three); third-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(d) (count four); and third-degree

criminal restraint, N.J.S.A. 2C:13-2 (count five).

The indictment stems from a violent attack in Newark on

October 9, 2011, where the victim, J.B., told police he was

assaulted by two males, one named "Adrian," and several other

females. Three days after the assault, J.B. met with police and

viewed various photographs. Based on his review of these

photographs, J.B. identified defendant as one of the male

assailants, and the co-defendant named in the indictment, J.N.,

as the other male assailant.

At a pre-trial Wade1 hearing, the prosecutor told the judge

J.B. identified Herbert Elijah as the other male perpetrator and

not J.N., resulting in the State's dismissal of the indictment

against J.N.2 On March 12, 2013, the grand jury returned

superseding Indictment No. 2013-3-605, which essentially renewed

1

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.

2d 1149 (1967).

2

The record does not reflect the Wade hearing was completed.

2 A-5770-14T1

counts one through four against defendant. The superseding

indictment also charged co-defendants Herbert Elijah, Yasmiyn

French, and Jamia French on counts one through four, and charged

co-defendant Elijah with third-degree criminal restraint on count

five.

Following a trial before a different judge, a jury found

defendant guilty on counts one through four. At sentencing, the

judge merged counts one and four into count two and sentenced

defendant to five years of imprisonment, subject to the eighty-

five percent period of parole ineligibility imposed by the No

Early Release Act, N.J.S.A. 2C:43-7.2. The judge further sentenced

defendant to a concurrent one-year term on count three.

On appeal, defendant seeks reversal, asserting (1) he

received ineffective assistance of counsel based on trial

counsel's failure to suppress an out-of-court identification; (2)

the trial court erred by failing to charge the jury, sua sponte,

on third-degree aggravated assault; (3) the trial court erred by

failing to voir dire the entire jury after an alleged incident

involving three jury members; and (4) the State failed to produce

sufficient evidence to support a verdict of second-degree

aggravated assault beyond a reasonable doubt.

We have reviewed the arguments presented in light of the

record and applicable law. For the reasons that follow, we affirm.

3 A-5770-14T1

We first summarize the relevant testimony from the trial

record. On October 9, 2011, Detective Chris Segarra responded to

a report of an assault in progress. Upon arriving at the scene,

Detective Segarra and his partner found J.B. handcuffed to a gate.

J.B. appeared injured, slumping towards the ground with blood on

his face.

J.B. told police that two males — one named "Adrian" — and

several females approached him and accused him of breaking into a

daycare facility. J.B. further stated the individuals proceeded

to beat him with "metal sticks and bats," while claiming they saw

him break into the daycare through its surveillance cameras.

According to Detective Segarra, J.B. described "Adrian" as thirty-

four years old, five-foot nine, two hundred twenty pounds, and

black.

Officer Demaris Febus testified that on October 9, he

responded to a reported burglary at a daycare center. Jamia

French, the daughter of owner Robyn Elijah, reported the crime.

Officer Febus viewed the daycare's surveillance footage and

observed a man carrying a bag; Jamia identified the man in the

video as "the guy from upstairs. The boyfriend of the girl that

lives . . . upstairs."

J.B. testified that in October 2011, he lived with his ex-

girlfriend above a daycare center in Newark. J.B. said "Adrian"

4 A-5770-14T1

worked at the daycare center, and he saw Adrian every day. He

knew Adrian by name because he "heard everybody else calling his

name." J.B. identified defendant as "Adrian" in the courtroom.

According to J.B., on October 9, 2011, while walking home

from the store, he observed defendant, defendant's stepfather, and

defendant's sisters walking towards him holding aluminum bats and

sticks. J.B. said the stepfather first struck him in the face

with a bat and then handcuffed him to a gate. Defendant and the

stepfather hit him with bats, and the sisters hit him with sticks.

J.B. said his assailants accused him of breaking into the daycare

center, which he denied.

The State introduced into evidence photographs of J.B.'s

injured arm, hand, buttocks, thigh, and leg, which all showed

bruising or swelling as a result of the assault. J.B. further

testified his assailants injured his knee, causing him to walk

with a limp and experience daily pain, three years after the event.

He also said the attackers broke his nose, which permanently

altered its shape and caused it to appear swollen.

After the trial court sentenced defendant, he filed this

appeal.3 He presents the following arguments for consideration:

3

After filing his notice of appeal, defendant moved for a

temporary remand to reconstruct the record and to complete the

Wade proceedings; however, he later withdrew the motion.

5 A-5770-14T1

POINT I

THE FAILURE OF TRIAL COUNSEL TO CHALLENGE THE

ADMISSIBILITY OF THE OUT OF COURT

IDENTIFICATION OF MR. BRUCE CONSTITUTED

INEFFECTIVE ASSISTANCE OF COUNSEL. (Not

raised below).

POINT II

THE FAILURE OF THE COURT TO GIVE APPROPRIATE

INSTRUCTIONS TO THE JURY ON AGGRAVATED ASSAULT

WAS ERROR MANDATING REVERSAL.

POINT III

THE TRIAL COURT'S FAILURE TO VOIR DIRE THE

ENTIRE JURY PANEL FOLLOWING THE INCIDENT WITH

THREE JURORS WAS ERROR AND DENIED DEFENDANT

OF [sic] A FAIR TRIAL.

POINT IV

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE

CONVICTION FOR SECOND[-]DEGREE AGGRAVATED

ASSAULT BEYOND A REASONABLE DOUBT. (Not

raised below).

We reject these contentions and affirm.

I.

Defendant first contends the failure of his trial counsel to

challenge the admissibility of J.B.'s out-of-court identification

constituted ineffective assistance. We disagree.

In order to prevail on a claim of ineffective assistance of

counsel, a defendant must meet a two-pronged test. First, the

defendant must show counsel was deficient, meaning "counsel made

errors so serious that counsel was not functioning as the 'counsel'

6 A-5770-14T1

guaranteed the defendant by the Sixth Amendment." Strickland v.

Washington, 466 U.S. 668, 687, l04 S. Ct. 2052, 2064, 80 L. Ed.

2d 674, 693 (1984). This inquiry turns on "whether counsel's

performance was 'reasonable considering all the circumstances.'"

State v. Savage, 120 N.J. 594, 617 (1990) (quoting Strickland,

supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 694).

"Second, the defendant must show that the deficient

performance prejudiced the defense." Strickland, supra, 466 U.S.

at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prove

prejudice, the defendant must demonstrate a "reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Id. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "Unless both parts of

the test are established, defendant's claim must fail." State v.

Echols, 199 N.J. 344, 358 (2009).

Claims attacking counsel's assistance "are particularly

suited for post-conviction review because they often cannot

reasonably be raised in a prior proceeding." State v. Preciose,

129 N.J. 451, 460 (1992). "Our courts have expressed a general

policy against entertaining ineffective-assistance-of-counsel

claims on direct appeal because such claims involve allegations

and evidence that lie outside the trial record." Ibid. "However,

when the trial itself provides an adequately developed record upon

7 A-5770-14T1

which to evaluate defendant's claims, appellate courts may

consider the issue on direct appeal." State v. Castagna, 187 N.J.

293, 313 (2006) (citing State v. Allah, 170 N.J. 269, 285 (2002)).

As such, we will consider defendant's argument, which we find

lacks merit. The State never introduced the disputed

identification at trial. Thus, even assuming the identification

was impermissibly suggestive or unreliable, see State v. Herrera,

187 N.J. 493, 501 (2006), defendant cannot show it caused prejudice

to his defense because it never came before the jury. Strickland,

supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Therefore, we will not disturb defendant's conviction on this

basis.

II.

Defendant next contends for the first time on appeal that the

trial judge's failure to instruct the jury sua sponte on third-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), was reversible

error. We disagree.

At trial, the court instructed the jury on second-degree

aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-

1(b)(1), count two of defendant's indictment. The judge also

instructed the jury on third-degree aggravated assault by causing

bodily injury with a deadly weapon, N.J.S.A. 2C:12-1(b)(2). The

defendants requested the judge charge fourth-degree aggravated

8 A-5770-14T1

assault by recklessly causing bodily injury with a deadly weapon,

N.J.S.A. 2C:12-1(b)(3), which the judge rejected.4 Defendant did

not request any other charges or otherwise object to the judge's

instructions.5

When a defendant does not object to a jury instruction at

trial, we review the charge for plain error. R. 1:7-2; R. 2:10-

2; State v. McKinney, 223 N.J. 475, 494 (2015). Plain error is a

"[l]egal impropriety in the charge prejudicially affecting the

substantial rights of the defendant 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. Adams, 194 N.J. 186, 207 (2008)

(alteration in original) (quoting State v. Jordan, 147 N.J. 409,

422 (1997)).

4

Defendant's brief is unclear whether he is also challenging

the judge's denial of this charge. Nonetheless, the facts in the

record clearly show a recklessness charge would have been

inappropriate because of the intentional nature of the assault.

See N.J.S.A. 2C:1-8(e) ("The court shall not charge the jury with

respect to an included offense unless there is a rational basis

for a verdict convicting the defendant of the included offense.");

State v. Mance, 300 N.J. Super. 37, 63 (App. Div. 1997) (finding

no rational basis to charge N.J.S.A. 2C:12-1(b)(3) where the

evidence of purpose was overwhelming).

5

The record shows the parties had a brief discussion regarding

the "significant bodily injury" language of N.J.S.A. 2C:12-1(b)(7)

with regard to the verdict sheet. However, defense counsel did

not formally request the judge charge the jury on this offense.

9 A-5770-14T1

"If neither party requests a charge on a lesser-included

offense, the court must sua sponte provide an instruction 'when

the facts adduced at trial clearly indicate that a jury could

convict on the lesser while acquitting on the greater offense.'"

State v. Maloney, 216 N.J. 91, 107 (2013) (quoting State v. Thomas,

187 N.J. 119, 132 (2006)). "Only if the record clearly indicates

a lesser-included charge — that is, if the evidence is jumping off

the page – must the court give the required instruction." State

v. Denofa, 187 N.J. 24, 42 (2006).

Defendant's requested charge on appeal – aggravated assault

causing significant bodily injury, N.J.S.A. 2C:12-1(b)(7) – is a

lesser-included offense of aggravated assault causing serious

bodily injury, N.J.S.A. 2C:12-1(b)(1). Our criminal code defines

significant bodily injury as "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-

1(d). The code defines serious bodily injury as "bodily injury

which creates a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ." N.J.S.A. 2C:11-1(b).

Defendant contends J.B.'s injuries were not "serious," and

therefore, the judge should have instructed the jury to consider

whether his injuries were "significant."

10 A-5770-14T1

We reject this argument. The record shows J.B. suffered a

knee injury from the assault, causing him to walk with a limp and

suffer daily pain three years after the event. J.B. also suffered

a broken nose, which he stated altered the shape of his nose. We

recognize "a medical diagnosis of a broken nose does not

necessarily qualify the harm . . . as 'serious bodily injury.'"

State v. Kane, 335 N.J. Super. 391, 399 (App. Div. 2000). Here,

however, J.B.'s nose was permanently disfigured. Defendant did

not dispute the extent of J.B.'s injuries at trial. Therefore,

the judge appropriately charged the jury on aggravated assault

causing serious bodily injury due to the "protracted" nature of

J.B.'s injuries. N.J.S.A. 2C:11-1(b). The record did not "clearly

indicate[]" that a charge for significant bodily injury was

appropriate. Denofa, supra, 187 N.J. at 42. Accordingly, we find

no basis to reverse the trial judge on this issue.

III.

Defendant further asserts the trial judge's failure to voir

dire the entire jury panel, following an out-of-court incident

involving three jurors, denied him a fair trial. We disagree.

While the jurors were outside of the courtroom during jury

deliberation, a man reportedly told Juror 16, "Be careful. You're

. . . gonna be indicting an innocent person." Juror 16 reported

this incident to the court officer, and two more jurors came

11 A-5770-14T1

forward to join in this report. According to the trial judge, the

jurors initially said the statement was intimidating or

"[s]omething to that effect."

Counsel for one of the co-defendants then stated to the judge,

"[I]f the other jurors actually said that they heard it . . . then

we need to voir dire them all." The judge agreed to "bring them

all up," but then requested "anyone that heard . . . I just want

[that] group of people."

The trial judge proceeded to voir dire Juror 16, who said a

man with dreadlocks approached him and two other jurors while they

were standing by the elevators and stated, "[T]hink real hard

. . . about your decisions. . . . Some people's lives is going

to be affected by it." Juror 16 denied feeling intimidated by

these remarks and said he did not discuss the incident with other

members of the jury.

The judge then interviewed the other two jurors. Juror 3

stated the man "expressed his opinion" regarding "the gravity of

a situation" and essentially admonished the juror to "[t]ake one's

time." Juror 3 did not feel this statement was a threat, and she

said it would not affect her ability to be fair and impartial.

Juror 2 said the man told her to "make sure [she] exhibited some

patience" because she "had lives in [her] hands." She "wasn't

quite sure how to take that," but she stated she did not feel

12 A-5770-14T1

intimidated and would be able to remain fair and impartial. Both

jurors said they did not discuss the incident with any of the

other jurors.

The parties agreed the man was associated with an unrelated

case and would not be back in the courtroom for the remainder of

the proceedings. Following voir dire, defendant did not object

or request the court take further action.

We apply an abuse of discretion standard to the trial court's

determinations regarding claims of juror taint. State v. R.D.,

169 N.J. 551, 559-60 (2001). The Sixth Amendment to the United

States Constitution and Article I, paragraph 10 of the New Jersey

Constitution guarantee criminal defendants the right to an

impartial jury during trial. Id. at 557. Criminal defendants are

"entitled to a jury that is free of outside influences and [that]

will decide the case according to the evidence and arguments

presented in court in the course of the criminal trial itself."

State v. Williams, 93 N.J. 39, 60 (1983). "The securing and

preservation of an impartial jury goes to the very essence of a

fair trial." Ibid.

"[I]f during the course of the trial it becomes apparent that

a juror may have been exposed to extraneous information, the trial

court must act swiftly to overcome any potential bias and to expose

factors impinging on the juror's impartiality." R.D., supra, 169

13 A-5770-14T1

N.J. at 557-58 (citing State v. Bey, 112 N.J. 45, 83-84 (1988)).

Accordingly, "the court must act swiftly to investigate and to

determine whether the jurors are capable of fulfilling their duty

in an impartial and unbiased manner." State v. McGuire, 419 N.J.

Super. 88, 153 (App. Div.), certif. denied, 208 N.J. 335 (2011).

Our Supreme Court recognizes that "the trial court is in the

best position to determine whether the jury has been tainted."

R.D., supra, 169 N.J. at 559. The trial judge must "consider the

gravity of the extraneous information in relation to the case, the

demeanor and credibility of the juror or jurors who were exposed

to the extraneous information, and the overall impact of the matter

on the fairness of the proceedings." Ibid. The trial judge has

the discretion to grant a new trial based on juror taint. Id. at

558.

In the instant matter, we find no basis to second-guess the

trial judge's handling of the jury issue. After learning of the

reported incident, the judge swiftly conducted voir dire of the

relevant jurors. The three jurors stated under oath that they did

not discuss the incident with the other jurors, they did not feel

intimidated, and they were able to decide the matter in a fair and

impartial manner. The record contains no evidence that any other

jurors were present for these comments, and, therefore,

interviewing the entire panel was unnecessary. Accordingly, we

14 A-5770-14T1

find no abuse of the trial judge's discretion in refraining from

questioning the remaining jurors.

IV.

Lastly, defendant asserts, for the first time on appeal, the

jury verdict finding him guilty of second-degree aggravated

assault causing serious bodily injury, N.J.S.A. 2C:12-1(b)(1), was

against the weight of the evidence. We disagree.

Defendant failed to file a motion for a new trial on this

issue. Generally, "the issue of whether a jury verdict was against

the weight of the evidence shall not be cognizable on appeal unless

a motion for a new trial on that ground was made in the trial

court." R. 2:10-1. However, although we need not entertain

defendant's argument in the absence of a new trial motion, we may

nevertheless choose to do so in the interest of justice. See

State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif.

denied, 134 N.J. 476 (1993). No miscarriage of justice exists

where the "trier of fact could rationally have found beyond a

reasonable doubt that the essential elements of the crime were

present." State v. Herrera, 385 N.J. Super. 486, 492 (App. Div.

2006) (quoting Smith, supra, 262 N.J. Super. at 512).

In support of his argument that the evidence was insufficient

to sustain his conviction, defendant reiterates his contention

that J.B. did not suffer "serious" bodily injury, as defined by

15 A-5770-14T1

N.J.S.A. 2C:11-1(b), because J.B. did not face a substantial risk

of death or suffer permanent disfigurement. Defendant asserts

J.B.'s injuries "constitute either bodily injury or at most

significant bodily injury." See N.J.S.A. 2C:11-1(a), (d).

Based on our discussion above, this argument is rejected.

Defendant caused J.B. to suffer a permanent limp and daily knee

pain, as well as a disfigured nose. These injuries clearly meet

the threshold for serious bodily injury because they constitute

"protracted loss or impairment of the function of any bodily

member." N.J.S.A. 2C:11-1(b). As such, we find the evidence at

trial was sufficient to establish defendant's guilt of second-

degree aggravated assault. There is no basis to disturb

defendant's conviction.

Affirmed.

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