On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 02-02-0511.
Before Judges Stern, A. A. Rodriguez and Payne.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following a jury trial, defendant was found not guilty of receiving stolen property, N.J.S.A. 2C:20-7, but was convicted of robbery, N.J.S.A. 2C:15-1. He was sentenced to five years in the custody of the Commissioner of Corrections with 85% to be served before parole eligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The vehicle defendant was driving at the time of the stop and arrest in East Orange was the subject of the receiving count, and the purse stolen from victim Paulette Lenez in Bloomfield was the subject of the robbery. On this appeal the defendant argues that"the prosecutor committed prejudicial misconduct by unfairly besmirching the defendant's credibility on the basis of his, and counsel's, presence at trial, necessitating reversal." Defendant asserts that comment on defendant's ability to tailor his testimony in response to hearing the other witnesses was unconstitutional and, in any event, prejudicial in this case. We affirm the conviction.
The testimony at trial reveals that on September 20, 2001, at around 10:00 a.m., Paulette Lenez left her home on Ashland Avenue in Bloomfield to walk to the post office. She carried her"double strap," white handbag over her shoulder. The handbag contained her glasses, identification, papers, credit cards, prepaid telephone calling cards, about $90 in cash, and"a golden watch" that was given to her on retirement, which she carried"in a little pouch" in the pocketbook.
Lenez walked past one or two houses before she felt someone"spinning" her around from behind and"grabbing" the handle of her handbag. She thereupon started screaming"very hard" for someone to help her. Lenez refused to let go of her handbag, but the assailant kept pulling it away from her. During this time a car stopped next to Lenez and the assailant. She did not see the face of the driver because she was"too upset" and just looked briefly in the direction of the car, which she first thought was stopping to help her. Finally, the straps of the handbag broke, and the assailant ran with it towards the vehicle. Lenez suffered a"big mark" and"scarring" on her arm due to the force that was used to pull the handbag away from her.
After running in the direction of the vehicle, the assailant came back towards Lenez because he dropped something. She testified:
[I] was right behind him and I start[ed] chasing him. He went to the car, the passenger seat and then he sat... I had my hands inside the car... holding the door, mak[ing] sure it don't close. Then he pushed me back and he was just forcing me back.
When the vehicle started moving, Lenez let go, but she continued screaming. She described the car as a"very new white car," a Ford Explorer, with an American flag on it.
Carmen Alava, Lenez's neighbor on Ashland Avenue, saw Lenez walking up the street that morning. Within a few minutes Alava noticed a man, who was not"from around" the neighborhood, jogging"alongside""a brand new jeep SUV car [that was] driving very slow." The jogger started"running a little bit faster," moved onto the sidewalk and then"snatch[ed] the purse of Miss Lenez." Alava noticed that the assailant grabbed the purse from the back and Lenez struggled with him. It was at that time that Alava"dropped everything and ran downstairs" to help, but by the time she got outside, Lenez was already walking back towards her house and she was"crying and yelling [and] very upset."
Lenez's screams were also heard by Maria Atunes, who was visiting her friend at the corner of Ashland and Linden Avenues. Atunes saw Lenez"hanging on to a white SUV" with two men inside and told her friend to call the police while she"ran outside." Atunes described the vehicle more specifically as a"brand new white SUV [with] an American flag on it." She"saw the same vehicle [she] had seen Paulette hanging onto drive around the corner." She had also seen the passenger"trying to push [Lenez] out from the car."
At about 10:05 a.m., Bloomfield police officers responded to the scene and interviewed Lenez, Alava and Atunes. Lenez described her assailant as an approximately twenty-year-old black male, about five feet eight inches in height, wearing a white t-shirt and blue jeans, with braids in his hair. Alava gave a similar description of the jogger that she saw. Atunes saw both the assailant and the driver even though they were both in the SUV at the time. She stated that the driver was in his twenties, wore a white t-shirt and had braids in his hair. Atunes' description of the assailant and his clothing was similar to that given by Lenez and Alava. Detective Edward Sousa of the Bloomfield Police Department sent out a description of the SUV through the State Police Emergency Network.
Shortly thereafter, Officer Eric Browmley of the East Orange Police Department saw a vehicle matching the SUV's description with two people inside, and turned on the overhead lights of his patrol car. Officer Browmley radioed information to headquarters about the vehicle he was chasing, and discovered that the vehicle was listed as a"stolen felony vehicle." The SUV made several"abrupt" turns before turning into a parking lot at 61 Glenwood Avenue, East Orange, where the driver pulled into a parking space. When Officer Browmley approached the vehicle, only defendant, the driver, was inside. The officer never saw the other occupant leave the vehicle. Browmley ordered defendant to get out and place his hands on the hood of the car, which defendant did, and the officer placed him under arrest for possession of the stolen SUV. Browmley also observed a purse"on the front passenger side on the floor area" of the SUV. When the officer asked defendant where the other person went, he"just didn't respond." A search of the area for the other occupant was unsuccessful.
After defendant's arrest, Browmley advised the dispatcher to notify the Bloomfield Police Department that defendant was under arrest. Shortly thereafter, Sergeant Gerald Mastroeni of the Bloomfield police transported Lenez to East Orange where she identified the white SUV. Lenez was also asked if she recognized defendant, and she said"yes, but [she] didn't know his face" because she"was fighting with the guy taking [her] pocketbook." At trial Lenez identified defendant as the person that she saw in East Orange, but she was not sure if he was the driver because she"didn't really have a chance to see" the driver.
When Lenez approached the SUV in East Orange, she identified her handbag, which was laying"between the door and the seats." After looking through her handbag, Lenez noticed that her $90 in cash, prepaid calling card and watch were missing.
Detective Sousa transported Alava and Antunes to East Orange. At the scene of the arrest, Alava identified the vehicle but she could not identify the driver because she did not see him during the incident in Bloomfield. Alava, however, stated that the defendant was not the jogger that she saw from her window. Atunes saw the SUV when she was taken to East Orange, and had"no doubt" it was the vehicle ...