On appeal from the Superior Court of New Jersey, Law Division, Bergen County, S-622-95.
Before Judges Baime, Carchman and Lintner.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued and Submitted March 14, 2001
These two appeals, which we decide back to back, arise from Bergen County Indictment No. 95-05-0622 which charged each defendant with burglary of an automobile, N.J.S.A. 2C:18-2 (Count One); theft of a motor vehicle, N.J.S.A. 2C:20-3 (Count Two}; receiving a stolen motor vehicle, N.J.S.A. 2C:20-7 (Count Three) armed robbery, N.J.S.A. 2C:15-1 (Count Four and Five); possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Six) and unlawful possession of a knife, N.J.S.A. 2C:39-5d (Count Seven).
From March 3 through March 12, 1997, Munoz and Pantoja were tried before a jury. Counts One and Two were dismissed by the judge in response to a joint defense motion for judgment of acquittal at the end of the State's case. A mistrial was entered after the jury announced that it was unable to reach a unanimous verdict. A second trial was scheduled before another judge. Prior to the commencement of the second trial, the judge granted defendants' joint motion to declare Ricky Rodriguez, a defense witness, unavailable, thereby allowing his prior sworn testimony to be read to the jury, N.J.R.E. 804(a)(4). Although unsuccessful in a similar motion made before the start of the first trial, the new trial judge granted the State's motion prior to the commencement of the second trial to permit one of the victims, Corporal Javier Torres, to wear his United States Marine uniform during his testimony. Following a five day trial, the jury found both defendants guilty on all the remaining counts.
Appropriate fines and penalties were imposed. After mergers, the trial judge sentenced both defendants to an extended term of thirty-years imprisonment with ten-years parole ineligibility on Count Four.
On appeal, Munoz raises the following points:
THE DUE PROCESS CLAUSE OF THE U.S. CONSTITUTION AND THE STATE CONSTITUTION REQUIRE THE STATE TO PROVE EVERY ELEMENT OF A CRIMINAL OFFENSE BEYOND A REASONABLE DOUBT.
REQUIRING THE STATE TO BEAR AND DISCHARGE THAT BURDEN IS ESSENTIAL TO THE PROTECTION OF A DEFENDANT'S BASIC CONSTITUTIONAL RIGHTS: DUE PROCESS, TRIAL BY JURY AND THE RIGHT TO REMAIN SILENT.
IT IS IMPROPER TO DEMEAN THE ROLE OF A DEFENSE ATTORNEY. THE PROSECUTION MAY NOT IMPUGN THE INTEGRITY OF A PARTICULAR LAWYER OR THAT OF LAWYERS IN GENERAL, WITHOUT A BASIS IN FACT, AS A MEANS OF IMPUTING GUILT TO THE DEFENDANT.
Pantoja raises the following arguments:
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN PERMITTING JAVIER TORRES TO WEAR A MARINE UNIFORM IN COURT DURING HIS TRIAL TESTIMONY.
A. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT APPLYING "THE LAW OF THE CASE" DOCTRINE TO THE RULING WHICH PRECLUDED THE WITNESS FROM WEARING HIS MARINE UNIFORM DURING HIS TESTIMONY.
B. THE COURT ABUSED ITS DISCRETION BECAUSE AN UNJUST ...