On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-11-1571.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and Sabatino.
Following a jury trial, defendant, Ronald Thompson, was convicted of second degree robbery, N.J.S.A. 2C:15-1a(1), as alleged in a one-count indictment. The judge denied the State's motion for extended-term sentencing and imposed a nine-year term with a NERA*fn1 parole disqualifier. We affirm.
These are the proofs presented by the State. Christine Yager testified that on July 6, 2004, at approximately 10:15 a.m., she was confronted by defendant in front of a small supermarket on Main Street in Passaic. Defendant said to her several times, "what do you got?" He then took the currency out of her hand and walked away with it. Yager followed defendant demanding that he return her money. He ignored her. Yager confronted him more forcefully by getting in front of him, and demanding, "give me my money." Defendant responded that "he didn't have [her] fucking money." Then he backhanded her across the face. Defendant grabbed Yager's arm and said that if she kept demanding money from him, he would "smack [her] down." Finally, defendant asked her, "do you feel me?"
Lisa Greer, a uniformed parking enforcement officer, witnessed the confrontation. She used her radio to contact the police. Officer Claudia Aguirre was dispatched to the scene. Aguirre spoke with Yager, who reported that a man had taken $36 from her, and when she confronted him, he hit her in the face, grabbed her arm and walked away. Aguirre radioed the description of the suspect and the direction of travel to other police units.
Detective Marco Clavijo testified that he heard Aguirre's report. He searched the immediate area for someone matching the description. After looking for approximately three minutes, he observed defendant, who fit Aguirre's description. Clavijo exited his patrol vehicle and detained defendant. Clavijo radioed Aguirre and requested that she bring the witness to his location.
Yager positively identified defendant as the man who took her money and assaulted her. Greer arrived at the scene. She also identified defendant as the man who struck Yager. Defendant was arrested and searched. Clavijo recovered $36 from defendant's pocket.
Defendant did not testify or present witnesses on his own behalf. At the conclusion of all testimony, the judge held a charge conference. Defense counsel asked for a jury instruction on the lesser-included offenses of theft from the person and simple assault. The judge and Assistant Prosecutor agreed that these instructions were required. The judge instructed the jury as follows:
The law recognizes a proposition known as lesser-included offenses. The lesser-included offense of robbery is a crime called "theft from the person." You're going to have the option of considering that charge.
So those are the options: robbery, theft from the person, the lesser-included offense of robbery, . . . simple assault, the lesser-included offense of theft from the person. And it's a descending order for you. If you find [defendant] guilty of robbery you're finished. If you find not guilty, you consider whether or not defendant is guilty or not guilty of theft from the person. If you find guilty, you're finished deliberating. If you find not guilty, you go on to consider whether or not [defendant] is guilty of simple assault.
There was no objection to this charge. The judge gave the jury a verdict sheet with similar instructions regarding the sequence or order of deliberations. The jury found defendant guilty of robbery ...