On appeal from Superior Court of New Jersey, Law Division, Essex County, 03-05-1870-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2006
Before Judges Collester and Sabatino.
Tried to a jury, defendant Julius Lassiter, was found guilty of second-degree robbery, contrary to N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a weapon, i.e., a crowbar or tire iron, contrary to N.J.S.A. 2C:39-5d; third-degree possession of a weapon, to wit, a crowbar or tire iron, for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b. On July 30, 2004, Judge Patricia Medina Talbert sentenced defendant to an aggregate term of seven years incarceration with eighty-five percent to be served under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals his convictions and sentence.
The incident giving rise to the charges against defendant occurred on Sunday, June 30, 2002, at approximately 6:30 or 6:45 a.m. in the City of Newark. Loretta Banks was walking along South 16th Street to a bus stop when she saw the defendant, whom she knew on sight by the name "Rasul," drive past her. Defendant stopped his car, a white four-door Corolla, and asked Ms. Banks if she wanted a ride. She declined his offer. She testified that defendant had his hair braided to the back of his head, a shaggy beard and a mustache. She saw him get out of his car, approach her, and suddenly he hit her in the head with something sharp, which she believed to be a crowbar. As she fell against his car, defendant hit her again and grabbed her pocketbook. He got back into his car and started to drive away, dragging Ms. Banks because her book bag was caught on defendant's side mirror. When they reached the intersection of South 16th Street and 15th Avenue, the bag strap broke, and Ms. Banks was left lying in the street. She managed to get up, walk back to her house, and then collapsed on her front porch. She was taken by ambulance to St. Michael's Hospital and x-rayed and treated for head injuries, spinal injuries and bruising on her back, arms, legs and face. She remained in the hospital until 10 p.m. that evening. Ms. Banks testified she had limited mobility in her right arm as a result of the attack. She also stated that defendant stole $300 from her.
Detective John LaBella of the Newark Police Department took a statement from Ms. Banks on July 3, 2002. He noticed that Ms. Banks appeared to still be in some pain. She told him that a black pocketbook, about $90 in cash, motor vehicle identification, a pager and cosmetics were taken from her during the incident. After Ms. Banks gave him a description of the assault, Detective LaBella showed her a series of photographs. She was unable to make an identification at that time or when shown other pictures during a subsequent interview on September 24, 2002. However, on March 14, 2003, when Ms. Banks was shopping on Broad Street in Newark, she saw the defendant standing on the street. She walked away immediately and told police officers about defendant and the robbery. Defendant was then arrested.
The defense was alibi. Tanisha Martin testified that on June 30, 2002, she picked up the defendant and Marcus Davis at about 7 a.m. at a music studio in East Orange. She claimed that she remembered the date because the defendant argued with her about her being late. Ms. Martin said her relationship with defendant was like a brother, and he stayed with her when he was in Newark. Marcus Davis then testified that he and the defendant were in a music studio in East Orange making a CD from about midnight Saturday throughout the night and until they were picked up by Ms. Martin at about 7:15 a.m. He said that Ms. Martin dropped him off at his home in East Orange while defendant was still in the car. On cross-examination Davis admitted he had no documentation showing he booked and paid for the use of the studio for the previous night and morning in question. He admitted that he had been convicted of second-degree robbery in 1992, and was sentenced to 364 days in the Essex County Jail.
Defendant testified on his own behalf that he was with Davis all evening on the night before the robbery in the East Orange studio. He said he was working as an engineer and doing digital editing for Davis and explained that they worked all night because the rates for renting the studio were less than during the day. He claimed he did not leave the studio until about 7:15 or 7:30 when he met Ms. Martin who picked him up. He explained that he lived in Fayetteville, North Carolina with his wife but traveled to East Orange on weekends. He denied owning a white Corolla, stating at one time he owned a green Lexus and blue Tahoe Jeep. He adamantly denied committing the crime.
On appeal, defendant makes the following arguments for our consideration:
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO ISSUE A CURATIVE INSTRUCTION AFTER DEFENDANT'S COUNSEL ELICITED INFORMATION FROM PROSECUTION WITNESSES THAT DEFENDANT WAS A MEMBER OF THE BLOODS GANG.
THE TRIAL COURT ABUSED IT DISCRETION IN REFUSING TO ALLOW THE DEFENSE TO PRESENT ADDITIONAL ALIBI EVIDENCE AFTER THE ...