On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-01-0007.
Before Judges Wefing, Fall and Payne.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2004
Defendant, Reymond Villanueva was convicted by a jury of second-degree robbery in violation of N.J.S.A. 2C:15-1 and third-degree burglary in violation of N.J.S.A. 2C:18-2. He was sentenced to ten years of imprisonment with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery charge and to a concurrent four-year term on the charge of burglary. He appeals from his conviction for robbery and his sentence on that charge, raising the following issues:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT ON THE LAW OF JUSTIFIABLE USE OF FORCE. (Not Raised Below.)
THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LAW OF ATTEMPTED THEFT, A LESSER-INCLUDED OFFENSE OF ROBBERY THAT WAS CLEARLY INDICATED BY THE EVIDENCE. (Not Raised Below.)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE PROSECUTOR URGED THE JURORS TO CONSIDER THE CHARACTER OF THE VICTIM NOTWITHSTANDING THE ABSENCE OF CHARACTER EVIDENCE AND THE ABSENCE OF A CHARACTER WITNESS INSTRUCTION. (Not Raised Below.)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT ON SUMMATION.
THE DEFENDANT'S SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
We reverse, finding in the circumstances of this case that the court committed plain error in failing to charge theft as a lesser-included offense to second-degree robbery.
Defendant's robbery conviction stemmed from his acknowledged attempt to steal the car radio of Christian Guidos. After breaking into Christian's car through the front passenger window and partially removing the radio, defendant was confronted by Christian, who chased, and eventually tackled and restrained defendant until the police arrived. Christian was principally assisted in apprehending defendant by his father, Ernesto Guidos.
Defendant, who testified at trial despite multiple prior convictions, admitted to the burglary and attempted theft but contested the existence of a second-degree robbery, which required proof that, while committing the theft, he had inflicted bodily injury or used force upon another.
Testimony provided by Christian and defendant differed as to what took place. According to Christian, upon hearing his car alarm and observing someone crawling in the broken passenger window of his car, he went to the area where his car was parked, confronted defendant, asked what he was doing, and"without thinking" he"tried to grab" defendant. Defendant, in turn, slapped defendant's hands off,"started kicking a little," and then"just got out [of] the car real quick." When on direct examination at trial Christian was asked to further describe the kicking, the following exchange occurred:
Q: You said he started kicking. Did he -- did he make contact with you with his feet?
Q: Where was he kicking you?
A: Kind of kicking, I guess to get out. I mean, just tried kicking at the window.
Q: Where was he kicking you? Where were you getting hit when ...