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State v. Garcia

February 8, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LUIS GARCIA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 04-09-0638, 03-02-0067, and 03-02-0068.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 29, 2006

Before Judges Winkelstein and Fuentes.

Defendant Luis Garcia was tried before a jury and convicted of second-degree conspiracy to commit an armed burglary, N.J.S.A. 2C:5-2; N.J.S.A. 2C:18-2a(1) and N.J.S.A. 2C:18-2b(2); second-degree attempted armed burglary, N.J.S.A. 2C:5-1; N.J.S.A. 2C:18-2a(1) and N.J.S.A. 2C:18-2b(2); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; second- degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) and fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f. Immediately after this verdict, defendant was tried before the same jury and convicted of second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7b. After the conclusion of both of these trials, defendant pled guilty, pursuant to a negotiated plea agreement, to one count of third-degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5). The court sentenced defendant to an aggregate term of seven years, with an eighty-five-percent parole ineligibility period pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed the mandatory fines and penalties.

After a careful review of the record, and in light of prevailing legal standards, we affirm. These are the facts necessary to address the legal issues raised in this appeal. The State's evidence in support of defendant's conviction consisted in large part of the testimony of arresting officer, Sergeant Edward Byrnes, of the Bernards Township Police Department. Byrnes testified that after making a lawful motor vehicle stop,*fn1 he seized a fully loaded .38 caliber Smith and Wesson five-shot revolver from the backseat of the Ford Focus in which defendant was riding. Including the driver, there were a total of four occupants in the car. Defendant was one of two passengers seated in the rear of the vehicle. According to Byrnes, defendant voluntarily blurted out that the handgun belonged to him.

The State also presented a statement taken from defendant shortly after his arrest.*fn2 The police took two statements from defendant. The first was not recorded. The second was recorded, and a transcript of the questions posed by the interrogating officer and responses given by defendant is part of the record before us. The jury thus heard the following exchange:

Q: OK and Luis, we were talking about what all went down tonight as far as you and the other people in the car and how this all came about. Why don't we start with how you first became aware of what you guys were going to do tonight. Who came to you?

A: Carlos [the front seat passenger] came to my house, and uh, told me he had an idea how to get money and I need money so I roll with it.

Q: OK and what was his idea?

A: We were going to go in some houses and take mostly safes, jewelry, money.

Q: OK and why did he come to you specifically?

A: Because he knew I had a gun.

Q: OK did he ask you to bring ...


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