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State v. Walton

April 02, 2004

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GLORIA WALTON, DEFENDANT-APPELLANT.



On appeal form the Superior Court of New Jersey, Law Division, Bergen County, 01-03-0749.

Before Judges Pressler, Ciancia and Alley.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 16, 2004

On October 7, 2000, at about 8:15 p.m., a man and a woman entered the Dress Barn store in Hackensack and proceeded to commit a robbery. The couple approached the cash register apparently posing as legitimate customers and the female culprit seemed to be making a purchase that required change. When the cashier opened the register to remove the change, however, the male culprit drew what appeared to be a gun and held it on the cashier, herded her and other store employees into the back, and there forced them to enter a bathroom and shut the door. As the store employees were being taken into the back one of them saw the woman go to the register and remove a bag from underneath it. When the employees freed themselves from the bathroom after about ten minutes the couple was gone.

Defendant was indicted on charges of first-degree armed robbery, N.J.S.A. 2C:15-1 (Count One); second-degree possession of a handgun with a purpose to use it unlawfully against another, N.J.S.A. 2C:39-4a (Count Two); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:29-5b (Count Three).

In a jury trial that began April 23, 2002, defendant was found guilty on all charges. She was sentenced to eighteen years imprisonment on the armed robbery conviction, with eighty-five percent of the term to be served without parole pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Count Two was merged into Count One, and on Count Three the sentencing judge imposed a concurrent four-year flat term.

On appeal, defendant raises the following contentions:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CROSS-RACIAL IDENTIFICATIONS EVEN THOUGH THERE WAS A CROSS-RACIAL IDENTIFICATION AND IDENTIFICATION WAS THE FUNDAMENTAL CONTESTED ISSUE IN THE CASE.

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND RIGHT OF CONFRONTATION AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 AND PAR. 10 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE INTRODUCTION OF EVIDENCE FROM UNKNOWN, ABSENTEE SOURCES IMPLICATING THE DEFENDANT. (Not Raised Below)

POINT III

THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON LESSER INCLUDED OFFENSES.

A. The Trial Court Failed To Instruct The Jury On The Crime Of Unarmed Robbery, A Second Degree Offense. (Partially Raised Below)

B. The Trial Court Failed To Instruct The Jury On The Crime Of Theft, A Third Degree Offense. (Partially Raised Below)

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY ON THE LAW OF ACCOMPLICE LIABILITY. (Not Raised Below)

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE ...


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