State of New Jersey v. Brandon Kane, 155 A.3d 612

Background

Defendant Brandon Kane assaulted his girlfriend ("Marjie") and another man (Charlie) after a party; injuries to Marjie included a ripped/bitten lip, swollen eyes, concussion, and lasting PTSD-related symptoms. Defendant was convicted by a jury of second-degree serious bodily injury aggravated assault, second-degree kidnapping (lesser-included), third-degree terroristic threats, third-degree aggravated assault (for Charlie), and fourth-degree criminal trespass (lesser-included). He was acquitted of attempted murder.
At trial defendant pursued a temporary-insanity/disassociative-state defense, offering PTSD from a prior stabbing and expert testimony; the State rebutted with an expert who concluded defendant knew the nature and wrongfulness of his acts.
Pretrial, defendant moved twice to compel production of Marjie’s medical, mental-health, rehabilitation, prescription, and hospitalization records; the motions were denied based on privilege and failure to satisfy the Kozlov test. The court also limited cross-examination about prior oxycodone use.
During trial the prosecutor asked a witness (defense-friendly party-goer) about alleged letters asking witnesses to change testimony; the court sustained an objection and instructed the jury to disregard the question. Defendant raised several other prosecutorial-misconduct claims, many unpreserved.
The court imposed concurrent seven-year NERA sentences (85% parole disqualifier) on the kidnapping and aggravated-assault convictions; it found aggravating factors (risk of reoffense, prior record, deterrence) outweighed the single listed mitigating factor.

Issues

Issue	State's Argument	Kane's Argument	Held
1. Motion to compel victim's medical/mental-health records (privilege/discovery)	State: Records not in prosecutor's possession; privileged; defendant failed to meet heavy Kozlov/substantial-need burden	Kane: Records likely to yield impeachment/relevance to perception, drug use, and insanity defense; needed for confrontation	Court: Affirmed denial — records privileged or not in State's control; defendant failed to show Kozlov factors or heightened need; victim should have notice if court compels disclosure
2. Limits on cross-exam re: prior oxycodone use	State: Habit evidence insufficient to prove use on assault date; cross-exam properly limited	Kane: Limiting inquiry violated confrontation and undermined ability to impeach victim	Court: No error — defendant failed to establish predicate showing relevance; limitation proper under Wormley principles
3. Prosecutorial misconduct (e.g., implying witness tampering; inflammatory remarks; vouching)	State: Questions and arguments were within scope or made in good faith; many objections not preserved	Kane: Multiple instances cumulatively deprived him of fair trial; particular objection to implying witness-tampering before jury	Court: Only the letter-question warranted discussion; court sustained objection and instructed jury to disregard; no egregious misconduct shown and no new trial required
4. Unanimity instruction (risk of fragmented verdict on assault count)	State: Evidence showed a continuum of violent acts; jurors reasonably convicted on the serious park assault	Kane: Separate acts (head-butt vs park attack) required specific unanimity instruction	Court: No plain error — no realistic risk of fragmented verdict; jury must have relied on the park assault to find serious bodily injury
5. Sentence (7-year concurrent NERA sentence excessive/procedurally flawed)	State: Sentence within guidelines; aggravating factors supported	Kane: Sentence excessive for first indictable offense; mitigating factors (disassociative state) warrant lesser sentence	Court: Sentence affirmed — factual findings supported, guidelines properly applied, no abuse of discretion

Key Cases Cited

In re Kozlov, 79 N.J. 232 (test for piercing privilege)
State v. Mauti, 208 N.J. 519 (limits on piercing privilege; narrow circumstances required)
State ex rel. A.B., 219 N.J. 542 (heightened discovery burden when intruding on victim's rights)
State v. D.R.H., 127 N.J. 249 (compelled examinations and substantial-need standard)
State v. Broom-Smith, 406 N.J. Super. 228 (appellate review of discovery rulings)
State v. Frisby, 174 N.J. 583 (specific unanimity instruction / fragmented verdict doctrine)
State v. Frost, 158 N.J. 76 (prosecutorial misconduct standard for new trial)
State v. Smith, 167 N.J. 158 (prejudice/objection preservation in misconduct claims)
State v. Loftin, 146 N.J. 295 (presumption that jury follows curative instructions)
State v. Cassady, 198 N.J. 165 (standard of review for sentencing)