                        NOT FOR PUBLICATION WITHOUT THE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-0736-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

AMADO SANCHEZ,

        Defendant-Appellant.

_______________________________


              Submitted April 17, 2018 – Decided July 11, 2018

              Before Judges Reisner and Hoffman.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Indictment No.
              14-10-1240.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Molly O'Donnell Meng, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Angelo J. Onofri, Mercer County Prosecutor,
              attorney for respondent (Mary E. Stevens,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
    Defendant    Amado   Sanchez   appeals   from   his   conviction   for

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), third-

degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(d), and fourth-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(d).     He also appeals from the sentence of seven

years in prison subject to the No Early Release Act, N.J.S.A.

2C:43-7.2.

    The charges arose from a June 15, 2014 incident, in which

defendant allegedly cut the victim, Mr. Pajuada, on the arm with

a large knife.    Pajuada and his former girlfriend Ms. Rodriguez1

testified about the incident, as did defendant.           On this appeal,

defendant raises the following points of argument:

         I. THE TRIAL COURT IMPROPERLY PRECLUDED
         DEFENDANT FROM ELICITING TESTIMONY ABOUT THE
         COMPLAINING WITNESS'S DISMISSED CHARGES AND
         INADEQUATELY CHARGED THE JURY AS TO THE
         PENDING   CHARGES   OF  THE   STATE'S   OTHER
         EYEWITNESS, DEPRIVING DEFENDANT OF HIS RIGHTS
         TO CONFRONTATION, DUE PROCESS, AND A FAIR
         TRIAL.

                 A. The Trial Court Improperly
                 Precluded Defendant From Eliciting
                 Testimony About Complaining Witness
                 Pajuada's    Aggravated     Assault
                 Charges For Stabbing A Man, Which
                 Were Dismissed Eight Weeks Before
                 Defendant's Trial.



1
   The witnesses' first names are irrelevant to our opinion, and
we omit them to protect their privacy.

                                   2                              A-0736-16T4
               B. The Trial Judge's Inadequate
               Instruction    Regarding    Charges
               Pending Against Rodriguez, The Only
               Other     Eyewitness,      Unfairly
               Neutralized The Effect Of That
               Testimony. (Not raised below)

          II. THE TRIAL COURT ERRED IN FAILING          TO
          INSTRUCT THE JURY ON SELF-DEFENSE, WHICH     WAS
          CLEARLY INDICATED BY TESTIMONY THAT          THE
          COMPLAINING WITNESS ACTED AS THE AGGRESSOR   AND
          BEAT DEFENDANT WITH A RAKE PRIOR TO          THE
          INTRODUCTION OF A KNIFE INTO THE FIGHT.

          III. THE MATTER MUST BE REMANDED FOR
          RESENTENCING BECAUSE THE TRIAL COURT FAILED
          TO GIVE ANY REASONS SUPPORTED BY THE RECORD
          FOR THE TWO AGGRAVATING FACTORS IT FOUND AND
          FAILED   TO   TAKE  INTO   ACCOUNT   RELEVANT
          MITIGATING FACTORS THAT WERE SUPPORTED BY THE
          RECORD.

After reviewing the record, we find no merit in any of those

contentions.   We affirm the conviction and the sentence.

                               I

     We summarize the most pertinent trial evidence, in light of

the issues raised.   There was no dispute that someone cut Pajuada

on the arm.    The wound severed an artery and required several

surgeries to repair.   The issue was whether defendant, or someone

else, stabbed Pajuada.

     According to Pajuada, at the time of the incident, he had

known defendant for several years, and the two of them did not get

along.   In the early morning hours of June 15, 2014, Pajuada got

into a fight with defendant's cousin Luis.   Pajuada testified that

                                   3                         A-0736-16T4
Luis had a broken bottle, and Pajuada punched him.               However,

Pajuada was not injured in that fight.     After the fight with Luis,

several    other   people   confronted   Pajuada,    and     during   that

confrontation, defendant pulled out a large knife and tried to

stab Pajuada in the torso.     Pajuada testified that defendant "was

stabbing me in the body, but I moved and so he got me in the arm."

After being injured, Pajuada chased defendant for a short distance,

before collapsing due to loss of blood.       Pajuada testified that

on the night of the fight, he was unarmed.

      Pajuada gave a statement to the police the day after the

assault, and another statement a month later.       In both statements,

he identified defendant as the one who cut him.            In a statement

to the police the day after the assault, Rodriguez also named

defendant as the assailant, and she showed the police a Facebook

photo of defendant on her cell phone.

      Rodriguez testified that at the time of the incident, she had

known defendant for several years, and the two of them were

friends.   She had been Pajuada's girlfriend, had a child with him,

and still had a friendly relationship with him.         On the night of

June 15, 2014, she went to an "after hours" drinking house2 on

Ferry Street.      Pajuada was already there.       Defendant and Luis,



2
    The house was also referred to as a "speakeasy."

                                   4                              A-0736-16T4
whom    Rodriguez    described    as       a    "young   boy,"   arrived     a

few minutes later.    Someone told Rodriguez that Luis had a knife,

and she took it away from him and hid it.

       According to Rodriguez, defendant got into an argument with

Pajuada, and the two men and Luis went outside the house.               Once

outside, Luis and Pajuada got into a physical confrontation.            Luis

had a broken bottle in his hand, but Rodriguez grabbed it from

him.    Pajuada pushed Luis down, and defendant yelled at Pajuada

to leave his cousin alone.       Rodriguez admitted that Pajuada then

challenged defendant to "fight like a man."

       Shortly thereafter, defendant pulled out a large knife and

started brandishing it at Pajuada.             Rodriguez tried to intervene

but Pajuada pushed her out of the way.             According to Rodriguez,

Pajuada was unarmed at first, but grabbed a rake after defendant

pulled out the knife.     She testified that defendant had a clear

path to leave the scene and could have walked away from the fight,

as she was begging him to do, but he did not.              After defendant

"stabbed" Pajuada, defendant ran away, and Pajuada ran after him

until he collapsed, bleeding.          Rodriguez ran after Pajuada, and

tried to stop the bleeding with a tourniquet.              When the police

arrived, Rodriguez told them defendant stabbed Pajuada.                    She

repeated that statement later at the police station.



                                       5                            A-0736-16T4
     In    his    trial   testimony,   defendant     implicitly    blamed     his

cousin Luis for injuring Pajuada.            Defendant stated that he was

at the Ferry Street house with Luis at around 3:40 a.m. on June

15, 2014.    Pajuada was there, too, and got into an argument with

Luis.     Pajuada and Luis went outside, but defendant remained in

the house "talking to a friend."            A few minutes later, defendant

and the friend went out the kitchen door to smoke a cigarette.

     Defendant testified that, after stepping outside, he saw that

Pajuada and Luis were having a fight.            Luis had a bottle in his

hand and Pajuada had "a jack knife."             They were both bleeding.

According    to    defendant,     Pajuada   pushed   Luis   to    the    ground.

Defendant walked over and lifted Luis up and told him to run,

because Pajuada had a knife.              Luis started running away, with

Pajuada chasing him.          Defendant walked away from the scene.

Defendant denied having a weapon, and said he did not know how

Pajuada "got injured."

                                     II

     Defendant contends that the trial court erred in precluding

the defense from cross-examining Pajuada about a 2011 assault

charge,    which    the   State   dismissed    about   eight     weeks    before

defendant's 2016 trial began.          At an in limine hearing prior to

the trial, the prosecutor represented to the court that the State

dismissed the charge because her office could not "get in contact

                                       6                                 A-0736-16T4
with    the    victim."     The   defense    did   not   question    that

representation.      The defense also conceded that the prosecutor's

office had told Pajuada that the assault charge against him had

no connection to the charges against defendant.          In other words,

the State did not offer Pajuada a deal to dismiss the charge

against him in return for his truthful testimony against defendant.

       The trial judge concluded that, under the circumstances, the

fact that Pajuada previously faced an assault charge, which had

been dismissed, admittedly with no deal, was not probative as to

his credibility as a witness in this case.           The judge further

reasoned that, as a crime victim, Pajuada had the right to testify,

without being questioned about irrelevant, dismissed charges.

       As the Supreme Court recently reaffirmed in State v. Bass,

224 N.J. 285 (2016), ordinarily, a witness's pending or resolved

criminal charges are appropriate subjects for cross-examination,

to show possible bias.      Id. at 304-05.

              [T]he case law envisions that a trial court
              will undertake a careful evaluation of a
              defendant's claim that a witness is biased.
              The nature of the witness's alleged offense,
              and the sentencing exposure that he or she
              confronts by virtue of that offense, is a
              significant factor.    If a witness faces a
              pending investigation or unresolved charges
              when he or she gives a statement to law
              enforcement, cooperates with the prosecution
              in preparation for trial, or testifies on the
              State's behalf, that investigation or charge
              is   an   appropriate   subject  for   cross-

                                   7                             A-0736-16T4
          examination. The trial court should also
          review the terms of the witness's plea
          agreement.

          [Id. at 305.]

     In the circumstances of this case, we agree with the trial

judge that the prior, dismissed charge was not probative as to

Pajuada's credibility.      Pajuada had told essentially the same

story since the night of the assault, when he was interviewed in

the hospital.    There is no evidence that he changed his story to

incriminate    defendant,   after   the   State   dropped   the   charges.

Further, the defense did not question the prosecutor's explanation

that the State dropped the charges because the victim could not

be found, and there was no plea deal.       Under those circumstances,

Pajuada was not beholden to the State at the time of defendant's

trial, and the State had nothing to hold over him, as it would if

Pajuada were on probation or had promised to give testimony in

exchange for dismissal of the charges.

     Lastly, on this record, if there was error in precluding

defendant from eliciting evidence of the dismissed charge, the

error was harmless.    See R. 2:10-2; Bass, 224 N.J. at 307-08.

     For the first time on appeal, defendant also contends that

the judge gave an inadequate jury instruction, after allowing the

defense attorney to cross-examine Rodriguez about pending charges

against her.    The charges were filed in 2016, and there was no

                                    8                              A-0736-16T4
evidence that the State had offered Rodriguez a plea deal or

otherwise suggested to her that she might get favorable treatment

if she testified against defendant.   Nonetheless, the trial judge

properly allowed defense counsel to elicit from Rodriguez the fact

that she had been charged with assault by auto and two weapons

offenses, for which she could be sentenced to prison if convicted.

     After Rodriguez gave that testimony, the judge gave the jury

a limiting instruction, telling them that they could only consider

the testimony as it bore on Rodriguez's credibility.   He told them

they might consider whether someone who did not follow society's

rules might also be likely not to give truthful testimony, and

cautioned them that a person charged with a crime is nonetheless

entitled to a presumption of innocence.    At the next break, the

judge specifically asked both attorneys if they had any objections

to the limiting instruction he had just given.    Defense counsel

responded, "I have nothing, Your Honor."

     In summation, defense counsel made the point that Rodriguez

was "currently being prosecuted by this prosecutor's office in a

different case" and "testified in favor of the State in order to

save herself."   She argued that the jury could determine that

Rodriguez hoped that testifying "would help her receive favorable

treatment from the State in how they handle those charges."        In

response, the prosecutor argued that Rodriguez had been telling

                                9                           A-0736-16T4
the same consistent story "since the early hours of June 15,

[2014]."

     In    his   final   charge   to   the   jury,   the   judge   thoroughly

instructed the jury about how to consider the pending charges as

possible evidence of bias.         He explained to the jury that they

could consider the pending charges against Rodriguez

            only to the extent that you determine that it
            has biased [her] in favor of the State, that
            is to say if you believe that [] Rodriguez
            testified as she did because of the charges,
            and because she hoped that her testifying
            would help her to receive favorable treatment
            from the State in how they handled those
            charges.

     The judge also, correctly, told the jury not to consider the

"mere fact" of the pending charges as meaning that Rodriguez was

guilty of the charges, or that she was "less likely to comply with

our society's rules and, therefore, more likely to ignore the oath

requiring truthfulness."      Rather the issue was whether the pending

charges influenced her to testify favorably to the State.               There

were no objections to the charge.

     Although the instructions the judge gave immediately after

Rodriguez testified were not on point, the judge corrected the

error in the final jury instructions.            We find that the final

charge adequately conveyed to the jury the concepts discussed in




                                       10                             A-0736-16T4
Bass, and in the Model Charge on Testimony of a Cooperating

Witness.   We find no plain error.      R. 2:10-2.

                                  III

     Defendant next argues that the judge should have charged the

jury as to self-defense.   The argument is without sufficient merit

to warrant discussion beyond these brief comments.            R. 2:11-

3(e)(2).

     Beginning   with   defense   counsel's   opening   statement,   and

continuing throughout the trial, the defense theory was that

defendant had nothing do to with the stabbing of Pajuada.        At the

end of the testimony, the judge noted that a self-defense charge

would be inconsistent with the defense theory, but he gave defense

counsel until the next trial day to tell him whether she wanted a

self-defense charge.     Defense counsel did not request a self-

defense charge, and giving due regard to the defense theory of the

case, the judge did not give the charge.      Defense counsel did not

object to any aspect of the judge's final instructions.        We find

no error, much less plain error, in the judge's course of action.

R. 2:10-2.   In the context of this case, giving a self-defense

charge would have undermined the defense.      See State v. Perry, 124

N.J. 128, 162-64 (1991); State v. Vasquez, 265 N.J. Super. 528,

550 (App. Div. 1993).



                                  11                            A-0736-16T4
                                   IV

     Finally, we address defendant's sentencing arguments.            The

judge found aggravating factors three and nine but did not give

them any particular weight.      See N.J.S.A. 2C:44-1(a)(3); N.J.S.A.

2C:44-1(a)(9).     The   judge     also   considered    the   particular

seriousness of the victim's injury, which required five surgeries.

The judge found mitigating factor seven, defendant's lack of any

prior criminal convictions.       N.J.S.A. 2C:44-1(b)(7).     The judge

considered all of the other mitigating factors defendant proposed

and explained why he found they did not apply.         After considering

the factors he found, the judge imposed a seven-year term, which

was in the mid-range for a second-degree crime.            See N.J.S.A.

2C:43-6(a)(2).   We find no abuse of discretion in the sentence.

See State v. Case, 220 N.J. 49, 64-65 (2014); State v. Bolvito,

217 N.J. 221, 228 (2014).   No further discussion of this point is

warranted.   R. 2:11-3(e)(2).

     Affirmed.




                                   12                            A-0736-16T4
