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State v. McClary

Decided: December 6, 1991.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES MCCLARY, DEFENDANT-APPELLANT



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

Michels, O'Brien and Havey. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

Defendant appeals from his conviction of first degree armed robbery (N.J.S.A. 2C:15-1), fourth degree possession of a weapon (N.J.S.A. 2C:39-5d), and third degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4d). After merging the weapons offenses into the armed robbery, defendant was sentenced as a persistent offender to an extended term, pursuant to N.J.S.A. 2C:44-3a, of thirty years with a fifteen-year period of parole ineligibility. We affirm.

At approximately 6:30 a.m. on November 15, 1988, Lynne Baumgartner Guthrie (Guthrie) arrived at her place of business in Atlantic City. After proceeding through the warehouse, she went upstairs to her office on the second floor where she placed her purse and briefcase on her desk. She returned downstairs to speak to the foreman, Bill Preston (Preston), regarding the day's work. While she was downstairs, other employees arrived including Roberto Arroyo (Arroyo), Paul Cross (Cross), and John Hudnell (Hudnell), who were scheduled to begin their day's work at 7:00 a.m.

Shortly after 7:00 a.m., Guthrie went back upstairs to her office. Through sliding-glass doors she observed defendant standing at her desk going through her purse. When she asked defendant what he was doing, he replied he was looking for personnel, gesturing toward an adjoining office. Although Guthrie did not believe him, she wisely gestured to him there was no problem and left her office, returning downstairs quickly. Fortunately, she caught the employees before they left for their job sites and all four workers ran upstairs with her.

Guthrie was behind Arroyo, who asked defendant what he was doing, and defendant replied he was looking for personnel. Cross told him there was no such office and told defendant twice to lie down on the ground. At this point, defendant ran in the direction of a storage area on the second floor. Guthrie called the police and went downstairs to await their arrival. Preston, Cross, Hudnell and Arroyo followed defendant into the

storage area. Finally, Preston knocked defendant off balance and he stumbled toward a wall into some rubber which was stored there. As defendant kept moving toward a nearby ramp and doorway, Arroyo grabbed him around the neck, catching his own arm in a roll of rubber. At this point, Cross and Hudnell grabbed defendant, which enabled Arroyo to free himself. Hudnell grabbed defendant's right arm, Cross held defendant around the neck and shoulders from the left side, and Preston grabbed one of defendant's legs. According to Arroyo, defendant "was fighting the whole way, pushing, trying to kick, moving his arms and everything." Preston described defendant as "trying to punch and trying to kick everybody in sight." Arroyo then observed defendant reach underneath his shirt and pull out a knife, at which time Guthrie's purse fell to the floor. Defendant pulled the knife out with the blade down. Arroyo grabbed defendant's hand, twisted it, and pulled the knife out of his hand, throwing the knife behind defendant while defendant was still fighting. Finally, the four men got defendant face down on the floor and held him until the police arrived. An officer testified to finding the knife on the floor about five feet from defendant and the black purse, which he returned to the victim.

On this appeal, defendant raises the following legal arguments:

POINT I THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENSE COUNSEL'S REQUEST TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF THEFT.

POINT II THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL.

POINT III THE TRIAL COURT ERRED IN FAILING TO PROPERLY INSTRUCT THE JURY ON THE ELEMENT OF FORCE .

POINT IV THE SENTENCE IMPOSED REPRESENTS AN ABUSE OF THE TRIAL COURT'S DISCRETION AND MUST BE VACATED.

A careful review of the record and a consideration of the contentions by defendant in light of the applicable law satisfies us that all of said contentions and issues ...


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