On appeal from Superior Court of New Jersey, Law Division, Essex County.
King, Brody and Skillman. The opinion of the court was delivered by Brody, J.A.D.
A jury found defendant guilty of first-degree robbery, N.J.S.A. 2C:15-1, and second-degree aggravated assault of the robbery victim, N.J.S.A. 2C:12-1b(1). The judge merged the crimes and sentenced him to a 15-year prison term for the robbery, 6 years to be served without parole eligibility. We reverse and remand for a new trial because of excesses in the assistant prosecutor's summation.
Defendant raises the following points in his brief:
I. PROSECUTORIAL COMMENTS MADE DURING SUMMATION WERE IMPROPER AND DEPRIVED DEFENDANT OF A FAIR TRIAL .
(A) THE PROSECUTOR IMPROPERLY COMMENTED ON AND MISREPRESENTED DEFENSE COUNSEL'S ROLE IN A CRIMINAL TRIAL.
(B) THE PROSECUTOR IMPROPERLY REFERRED TO HIS OWN PERSONAL BELIEF AS TO THE GUILT OF THE DEFENDANT.
(C) THE PROSECUTOR MADE AN IMPROPER REFERENCE TO DEFENDANT'S FINANCIAL CONDITION AND TO THE VICTIM'S HOMOSEXUALITY AS MOTIVE TO COMMIT A CRIME.
II. IMPOSITION OF THE SIX YEAR PERIOD OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND NOT SUPPORTED BY THE RECORD BELOW.
(A) THE COURT'S FINDINGS OF FACT ARE NOT SUPPORTED IN THE RECORD.
(B) THE SENTENCE IMPOSED IS SO SEVERE THAT IT SHOCKS THE JUDICIAL CONSCIENCE.
III. PRETRIAL EVIDENTIAL RULINGS BY THE TRIAL COURT CONSTITUTED AN ABUSE OF DISCRETION BECAUSE THEY WERE NOT
SUPPORTED ON SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD BELOW.
(A) THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE SERGEANT WRIGHT DID NOT HAVE JUSTIFICATION TO STOP DEFENDANT IN THE FIRST INSTANCE AND THUS DID NOT HAVE THE RIGHT TO CONDUCT A PAT DOWN SEARCH OF DEFENDANT.
(B) TESTIMONY CONCERNING THE OUT OF COURT IDENTIFICATION OF DEFENDANT BY MARTINEZ AT THE POLICE STATION SHOULD HAVE BEEN EXCLUDED BY THE COURT.
(C) THE COURT ABUSED ITS DISCRETION BY DECIDING TO ADMIT EVIDENCE OF DEFENDANT'S PRIOR CONVICTION TO BE USED TO IMPEACH HIS CREDIBILITY.
We agree with the substance of defendant's first point, his second point is rendered moot by our remand, and we are satisfied from a careful review of this record that his third point is clearly without merit. R. 2:11-3(e)(2).
Defendant was tried with a co-defendant, Todd Barnes. According to the State's evidence, around 2:00 a.m. a police officer patroling in his car spotted defendant and Barnes running from a parking lot that served several businesses including a bar. After briefly losing sight of the men he again spotted them while they were walking together on the sidewalk. He noticed that defendant's face was bloody, his clothes disheveled and dirty, and his demeanor anxious and nervous. The officer stopped the men and patted them down. Defendant had what appeared to be a handgun in his pants pocket. It was a starter's cap pistol.
The officer left defendant and Barnes with other officers whom he had previously summoned, and headed toward the bar. On the way, he was approached by someone who told him that a patron of the bar had been assaulted in the parking lot during an attempted armed robbery. The officer met the victim at the bar and drove him to where the other officers were holding defendant and Barnes. Though distraught, the victim recognized both men, identifying defendant as the man who had just assaulted and tried to rob him at gunpoint.
The victim identified the men again at police headquarters and at trial. He testified that he fought ...