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State v. Jordan

Decided: April 17, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD JORDAN, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Michels, Deighan and R. S. Cohen. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Defendant Donald Jordan was indicted by the Camden County Grand Jury and charged with first degree robbery in violation of N.J.S.A. 2C:15-1 (Count 1) and two counts of aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1) (Counts 2 and 3). Following a lengthy jury trial, defendant was convicted of second degree robbery, a lesser-included offense of the first degree robbery charged in Count 1 and two counts of simple assault, the lesser-included offenses of the aggravated assault charged in Counts 2 and 3. Defendant's motions for a new trial or, alternatively, a judgment of acquittal notwithstanding the verdict were denied. The State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3 was granted. The trial court thereupon committed defendant to the custody of the Commissioner of the Department of Corrections for a term of 15 years with a seven-and-one-half year period of parole ineligibility and assessed a Violent Crimes Compensation Board penalty of $30 for the second degree robbery. Additionally, the trial court committed defendant to two concurrent terms of six months each and assessed Violent Crimes Compensation Board penalties totaling $60 for the two simple assaults. Defendant appeals.

According to the State's proofs, on April 8, 1987, at approximately 6:00 p.m., two store detectives employed at Bradlees in Stratford, New Jersey, Joseph Berger (Berger) and Barbara Brosmer (Brosmer), were in the Loss Prevention Office monitoring the store's surveillance cameras. Berger and Brosmer observed an individual, later identified as defendant, enter the store and walk over to the "sight and sound" section of the store. Berger and Brosmer were suspicious of defendant because

he had been in the store previously and had acted in a manner which caught their attention, and because defendant was wearing a heavy field jacket when the day was very warm and the store air-conditioning was not working. Consequently, Berger and Brosmer continued to observe defendant's activity in the store by using the cameras. Berger and Brosmer saw defendant remove two stereo radios with cassette players ("boom boxes") from the shelves and place them in a large, dark plastic bag which had been concealed under his jacket. Defendant then walked through one of the registers without paying for the radios and left the store.

Meanwhile, as defendant was walking towards the store exit, Berger telephoned Ken Polk (Polk), another store detective at the front of the store, and told him that a shoplifting was in progress and that the suspect would be attempting to leave the store. Polk waited outside. When defendant left the store, Polk showed defendant his identification and asked defendant if he had a receipt for the merchandise. Defendant looked in the bag he was carrying and then "threw a punch" at Polk. When Polk avoided defendant's punch, defendant swung the bag containing the radios at Polk's head and ran past him. However, Robert Richards (Richards), another store employee, was standing in the parking lot and grabbed defendant. Defendant continued to struggle with Polk and Richards, and then with Berger who joined them outside. Eventually, however, defendant was subdued and brought inside the store. At that point, Richards went back outside and defendant was escorted in the direction of the office by Polk and Berger, who were then joined by Brosmer and Joseph Boccaleri (Boccaleri), a salesperson at Bradlees.

Approximately halfway through the store, defendant pushed Polk out of the way and "body-slammed" Berger. When Brosmer stepped in his way and told him "you're not going nowhere," defendant turned around and punched her in the mouth. The employees then attempted to subdue defendant and put a pair of handcuffs on him. Defendant, however, "full

force punched" Brosmer between the legs, which lifted her off the ground, and threw her into a display. As a result of defendant's punch, Brosmer sustained severe pelvic trauma. In addition, defendant punched Berger in the stomach. When Berger attempted to hit defendant in the jaw, defendant bent down. As a result, Berger hit defendant in the head, spraining his hand. Thereafter, defendant was subdued, handcuffed and taken to the security office, where the police were telephoned.

Defendant seeks a reversal of his convictions on the following grounds set forth in his brief:

I. The trial court committed reversible error in denying defense counsel's request to charge the jury on the lesser included offense of theft or shoplifting.

II. The trial court erred in refusing to grant the jury's request for a read-back of the testimony of two ...


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