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State v. Rose

Decided: January 5, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GREGORY J. ROSE, DEFENDANT-APPELLANT



J.h. Coleman, Brody and Skillman. The opinion of the court was delivered by Brody, J.A.D.

Brody

Following a jury trial, defendant was convicted of first-degree robbery, a violation of N.J.S.A. 2C:15-1a, for which he was sentenced to a 20-year prison term. The robbery was raised to a crime of the first degree because the jury found that defendant, either as a principal or an accomplice, purposely inflicted serious bodily injury upon the victim. N.J.S.A. 2C:15-1b.

Defendant was one of three people, including a juvenile, who entered a convenience store about 11:00 p.m. While two of the three went to opposite sections of the store to steal, the third severely beat the 56-year-old female clerk who was standing by the cash register. Her assailant, whom the clerk was not able to identify, knocked her to the floor and then repeatedly kicked her in the face, fracturing her jaw in two places. After the clerk lost consciousness, the assailant tried unsuccessfully to open the cash register. The trio then turned to leave when a customer came in. Defendant told the customer that the clerk had suffered a "fit" and that he had already called for an ambulance. The thieves then left carrying away cigarettes that they had stolen from the store.

The store manager testified that when he examined the store right after the robbery, he found that 40 cartons of cigarettes were missing from shelves and 80 packs were missing from an open display. The missing cigarettes were in the store when he had last taken inventory at 1:00 p.m. earlier that day. He estimated that the store usually sold between 10 to 15 cartons a day. He was not asked the price or value of the missing cigarettes.

Although acknowledging that he and his partners had entered the store to "shoplift" the cigarettes he had stolen, defendant testified that he never intended to injure anyone during their criminal venture. He said it was the juvenile who struck the clerk and tried to open the register. However, an accomplice, who was a witness for the State pursuant to a plea agreement, testified that although he did not see who struck

the clerk, he heard her fall and then saw defendant alone standing over her. He also testified that defendant had tried to persuade him to blame the juvenile for the assault when he testified.

Defendant's arguments, all raised for the first time on appeal, are as follows:

I. THE PROSECUTOR IN SUMMATION MADE IMPROPER STATEMENTS TO THE JURY DEFINING THE LAW TO BE CHARGED.

II. THE JURY SHOULD HAVE BEEN GIVEN THE LESSER INCLUDED CHARGE OF SHOPLIFTING.

III. THE JURY SHOULD HAVE BEEN GIVEN THE LESSER INCLUDED CHARGE OF ASSAULT.

IV. THE SENTENCE WAS EXCESSIVE AND BASED IN PART UPON ELEMENTS THAT WERE IMPROPER.

We are satisfied from a careful review of this record that except for Point II the issues raised are clearly ...


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