On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-09-0975.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Defendant Roy A. Biggins was tried before a jury and convicted of second-degree robbery, N.J.S.A. 2C:15-1, and third- degree theft by unlawful taking, N.J.S.A. 2C:20-3a. The court sentenced defendant to a six-year term of imprisonment, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed the mandatory fines and penalties.
We gather the following facts from the evidence presented at trial. Frank Labor testified that defendant and another man identified only as wearing "a brown jacket," attacked him, knocked him to the ground, and pushed a green shirt in his mouth in an attempt to gag him. Defendant and the other man then struggled with Labor, as they attempted to remove money from Labor's pants' pockets. When the two assailants finally succeeded in taking some money, they ran away, leaving Labor on the ground.
Prior to the incident, Labor had recognized defendant as a former resident of a homeless shelter operated by Rescue Mission in Trenton. Labor had stayed at the shelter the previous night. Labor was unable to identify his attackers from computer photographs shown to him by the police. At his request, however, the police drove Labor to the Rescue Mission, where he identified defendant as one of his attackers. Defendant was thereafter arrested. After receiving Miranda*fn1 warnings, defendant gave an inculpatory statement admitting his involvement in the robbery.
Against these facts, defendant now appeals raising the following arguments.
PROSECUTORIAL MISCONDUCT, DURING CROSS-EXAMINATION OF THE DEFENDANT, DEPRIVED HIM OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 10. (Not Raised Below)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMIMAL JUSTICE.
Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The prosecutor's questions to defendant during cross-examination did not violate defendant's right to a fair trial. State v. Frost, 158 N.J. 76, 83 (1999). We note that defense counsel did not object to the questions at the time of trial. Therefore, our review here is guided by the plain error standards in Rule 2:10- 2. There is no evidence from which to conclude that the prosecutor's questions were clearly capable of producing an unjust result.
The sentence imposed by the court is well-supported by the record, and within the authority conferred to the court by N.J.S.A. 2C:44-1. ...