On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-04-0471.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Holston, Jr. and Grall.
Defendant Pedro Covil appeals from a final judgment of conviction entered following a trial on charges against him and his co-defendants James Bright and Gregory Simon. The jurors found defendant guilty of robbery, a crime of the second degree, N.J.S.A. 2C:15-1. Bright was acquitted. The court dismissed the single count of the indictment in which Simon was charged at the close of the State's case.*fn1 In sentencing defendant, the trial court exercised its discretion pursuant to N.J.S.A. 2C:44-1f(2), and imposed a three-year term of imprisonment, eighty-five percent of that term to be served without possibility of parole as required by N.J.S.A. 2C:43-7.2d(9). The court also imposed a $50 VCCB assessment, a $75 SNSF assessment and a $30 LEOTEF penalty. This appeal followed.
On the evening of May 3, 2003, defendant, Bright and John Doe went to the house Brian Jenkins shared with Simon and three other adults. According to Simon, defendant was visibly upset when he arrived. He told Simon that Jenkins was spreading rumors about him. Simon had heard Jenkins say that he suspected that defendant took marijuana from him. Simon told defendant that Jenkins was upstairs, and defendant and Doe went up to see him.
According to Jenkins, defendant wanted to buy marijuana from him, which he had done in the past. When Jenkins told defendant he did not have any marijuana, defendant showed Jenkins his money. When Jenkins insisted he had none to sell, defendant lifted his shirt as if he were reaching for a gun and ordered Jenkins to put his hands on the floor. Thinking defendant had a gun, Jenkins fled. In the hallway, he saw a masked man carrying an electrical cord. That man grabbed Jenkins, attempted to tie his hands with the cord and forced him to return to his room. The man and defendant pushed Jenkins onto his bed. Defendant held Jenkins while the other man tried to tie him up. Simon came into the room and told defendant and the man to stop what they were doing, at which point they left. Jenkins saw Bright take his camcorder. After the incident, Jenkins discovered that his ring had been taken from the desk next to his bed.
Simon gave a slightly different account. He explained that he came upstairs because he heard arguing. When he entered Jenkins's room, defendant and Jenkins were shouting at one another. Thinking that the argument was going to escalate into a fight, Simon stepped between defendant and Jenkins and told them to "cut it out." He did not see anyone wearing a mask and did not notice an electrical cord. Defendant and Doe left together.
Later the same night, Jenkins was shot. He is now paralyzed as a consequence of that crime. No defendant in this case was charged in connection with the shooting.
Although the trial court ruled that no witness would be permitted to give any testimony about the shooting, Simon's attorney asked an officer to read a question he had asked one of Jenkins's housemates during his investigation of the shooting. The question was: "Are you aware of any motive for the shooting." There was an immediate objection, which the trial court sustained. The court followed that ruling with a clear instruction directing the jurors that this case had nothing to do with a shooting and that none of the defendants in this case had been charged with any crime related to a shooting. Defendant did not move for a mistrial, and the case was tried to conclusion without further reference to that crime.
At the close of the case, defendant asked the court to permit the jury to consider assault as a lesser included offense of robbery. The trial court rejected that request.
Defendant raises the following issues on appeal.
I. THE COURT'S FAILURE TO DECLARE A MISTRIAL UPON THE INTRODUCTION OF THE IRRELEVANT, INFLAMMATORY, AND INCURABLY PREJUDICIAL TESTIMONY ABOUT A SHOOTING DENIED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. U.S.C.A. CONST. AMENDS VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10. [(NOT RAISED BELOW)]
II. THE COURT'S FAILURE TO CHARGE SIMPLE ASSAULT AS A LESSER-INCLUDED OFFENSE OF ROBBERY WHEN THE FACTS WARRANTED IT DENIED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. U.S.C.A. CONST. ...