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State v. Smalls

March 27, 1998

STATE OF NEW JERSEY, PLAINTIFF/RESPONDENT,
v.
JAMES SMALLS, A/K/A JAMES WHITE, DEFENDANT/APPELLANT. STATE OF NEW JERSEY, PLAINTIFF/RESPONDENT,
v.
GREGORY COUSAR, A/K/A ROBERT WALLS, GREGORY XHOMAS, LARRY WILSON, GREGORY THOMAS, ROBERT WHITE, DEFENDANT/APPELLANT.



Submitted: February 18, 1998

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

Before Judges Pressler, Wallace and Carchman.

The opinion of the court was delivered by: Wallace, Jr., J.A.D.

Defendants James Smalls and Gregory Cousar were indicted for one count of robbery. A jury found both defendants guilty of second degree robbery, N.J.S.A. 2C:15-1. The trial Judge sentenced Smalls to an extended term of fifteen years with a six year parole disqualification and sentenced Cousar to a ten year term with a five year parole disqualification. These appeals, calendared separately, are consolidated for the purposes of this opinion.

On appeal, defendant Smalls makes the following arguments:

POINT I.

THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY A FINDING OF GUILT BY THE JURY AS TO ROBBERY.

POINT II.

THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY CONCERNING THE LESSER INCLUDED OFFENSE OF DISORDERLY PERSON THEFT.

POINT III.

THE EXTENDED TERM OF A 15 YEAR SENTENCE IMPOSED BY THE COURT WAS EXCESSIVE AND UNREASONABLE. Defendant Cousar makes the following arguments in his brief:

POINT I.

THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT II.

THE TRIAL COURT'S INSTRUCTIONS TO THE JURY WERE FATALLY FLAWED BECAUSE THOSE INSTRUCTIONS DID NOT ADEQUATELY EXPLAIN THE ELEMENTS OF THE ROBBERY STATUTE AND DID NOT RELATE THOSE ELEMENTS TO THE FACTS OF THIS CASE. (NOT RAISED BELOW).

A. THE TRIAL COURT'S INSTRUCTIONS FAILED TO EXPLAIN THAT SOME SLIGHT, INCIDENTAL CONTACT WITH THE PERSON OF MS. SESAY COULD NOT SATISFY THE ...


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