STATE OF NEW JERSEY v. GEORGE A. GREENWOOD

Defendant George A. Greenwood was indicted on charges of third-degree aggravated assault with a deadly weapon, N.J.S.A.

2C:12-1b(2); third-degree terroristic threats, N.J.S.A. 2C:12 February 5, 2016

A-4672-13T1 2 3a; third-degree criminal restraint, N.J.S.A. 2C:13-2a; fourth

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and

third-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4d. The jury convicted him of criminal restraint

and unlawful possession of a weapon, and the judge sentenced

defendant to five years in State prison on the criminal

restraint conviction and an eighteen-month concurrent term on

the weapons charge. Defendant appeals, contending the

prosecutor engaged in misconduct and the sentence is excessive.

We affirm.

The State's proofs at trial were that defendant, who was in

his early sixties, and his girlfriend shared a house in Howell

with two other people, a man who was about five years younger

than defendant, and the man's girlfriend. The four were

friendly and defendant's male housemate, who ran a business from

a workshop in a garage on the property, often drove defendant to

doctor's appointments or on other errands. One day in the

summer, defendant went out to the man's workshop and told him

their elderly neighbor was looking for him. As his housemate

walked towards the door to exit the shop, defendant pulled a

knife on him.

The housemate testified that defendant pressed the knife to

his throat and ordered him to get into the pickup truck. The

A-4672-13T1 3

man offered to drive defendant anywhere he wanted to go so long

as he got rid of the knife. According to the housemate,

defendant said he needed to go to the hospital because he

"need[ed] some pills for the pain." Defendant eventually tossed

the knife into the grass and the two drove to the hospital.

Once at the emergency room, defendant's housemate alerted

hospital personnel to the situation and defendant was detained

by hospital security. The housemate returned home and called

the police. An officer responded and recovered the knife from

the grass where defendant had discarded it. The officer then

proceeded to the hospital to interview defendant. The officer

testified that defendant told him that "everything [his

housemate] told me was the true."

Defendant claimed his housemate had fabricated the claim

because he was afraid defendant would report certain alleged

violations of the man's parole to authorities. He told the jury

he suffered from anxiety attacks so severe that he would be

afraid to even go outside. On the day of the incident defendant

claimed to have been suffering from an attack and unable to find

his medication. He thus wanted his housemate to take him to the

hospital. When he could not locate him in the house, defendant

went out to the shop to look for him. He admitted he did

something "stupid" and "grabbed a kitchen knife" because "he had

A-4672-13T1 4

to go outside to get to the garage," but insisted he told his

housemate "no this ain't for you."

Defendant told the jury he never threatened his housemate

with the knife or assaulted him. As for the officer's

testimony, defendant claimed the officer had only asked him

whether it was true he had a knife, as his housemate had

reported. Although admitting it was true he had a knife,

defendant denied confirming the rest of his housemate's report

to the officer. The jury acquitted defendant of aggravated

assault, terroristic threats and possession of a weapon for an

unlawful purpose and convicted him of criminal restraint and

unlawful possession of the knife.

Defendant raises the following issues on appeal.

POINT I

THE TRIAL COURT MISAPPLIED ITS DISCRETION AND COMMITTED HARMFUL ERROR IN PERMITTING THE PROSECUTOR, OVER TRIAL COUNSEL'S OBJECTION, TO ASK DEFENDANT DURING CROSSEXAMINATION IF THE STATE'S WITNESSES WERE "LYING."

POINT II

DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL "OVERZEALOUSNESS" IN SUMMATION.

POINT III

THE FIVE (5) YEAR BASE TERM IMPOSED ON DEFENDANT'S CONVICTION FOR CRIMINAL

A-4672-13T1 5

RESTRAINT ON COUNT THREE WAS MANIFESTLY EXCESSIVE.

We reject those arguments and affirm defendant's conviction and

sentence.

We turn first to defendant's claim that his conviction

should be reversed because of the trial court's error in

permitting the prosecutor, over defense counsel's objection, to

ask defendant on cross-examination if the State's witnesses were

"lying." We agree that the court erred in not sustaining

counsel's objection to those questions. It is well established

that asking a witness to assess the credibility of another

witness is prohibited. State v. Bunch, 180 N.J. 534, 549

(2004); State v. Frisby, 174 N.J. 583, 594 (2002). Accordingly,

asking defendant whether other witnesses were "lying" was highly

improper. See State v. Green, 318 N.J. Super. 361, 377-78 (App.

Div. 1999), aff'd, 163 N.J. 140 (2000).

Although this case clearly turned on the jury's assessment

of the credibility of the witnesses, we do not find the error

one capable of producing an unjust result. In addition to the

court's clear instruction to the jury on how it was to assess

credibility, thereby ameliorating any prejudice which might have

resulted from the prosecutor's cross-examination, see State v.

T.J.M., 220 N.J. 220, 237 (2015), the jury acquitted defendant

of aggravated assault with a deadly weapon, terroristic threats

A-4672-13T1 6

and possession of the knife for an unlawful purpose, reinforcing

our conclusion that the error did not deprive defendant of a

fair trial. See State v. Dellisanti, 203 N.J. 444, 462-63

(2010). Defendant's argument that the prosecutor overstepped

her bounds in summation by interjecting her personal beliefs and

attempting to diminish the State's burden of proof do not

warrant discussion in a written opinion. R. 2:11-3(e)(2).

We also reject defendant's argument that his five-year

sentence, the top of the range for the third-degree crime of

criminal restraint, is excessive. "Appellate review of the

length of a sentence is limited." State v. Miller, 205 N.J.

109, 127 (2011). The judge considered defendant's prior

criminal record and found that aggravating factors three, the

risk that the defendant will commit another offense, N.J.S.A.

2C:44-1a(3); six, the extent of the defendant's prior criminal

record and the seriousness of the offenses of which he has been

convicted, N.J.S.A. 2C:44-1a(6); and nine, the need for deterring

the defendant and others from violating the law, N.J.S.A. 2C:44

1a(9), outweighed the non-existent mitigating factors.

We are satisfied that the judge's findings and balancing of

the aggravating and mitigating factors are supported by adequate

evidence in the record, and the sentence is neither inconsistent

with sentencing provisions of the Code of Criminal Justice nor

shocking to the judicial conscience. Affirmed.