On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Indictment No. 03-02-0184.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Skillman and Winkelstein.
A jury found defendant guilty of first-degree robbery, in violation of N.J.S.A. 2C:15-1; second-degree burglary, in violation of N.J.S.A. 2C:18-2; third-degree resisting arrest, in violation of N.J.S.A. 2C:29-2a(1); third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d; fourth-degree possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have, in violation of N.J.S.A. 2C:39-5d; third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(5)(c); and third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(5)(a). The jury acquitted defendant of an attempted murder and three other aggravated assault charges. The trial court sentenced defendant to an extended term of thirty-two years imprisonment for the first-degree robbery, subject to the 85% parole ineligibility period mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive three-year term for one of the aggravated assaults. The court also imposed a concurrent ten-year term for the burglary; a concurrent five-year term for possession of a weapon for an unlawful purpose; and a concurrent eighteen-month term for unlawful possession of a weapon. The court merged defendant's other convictions.
Defendant's convictions arose out of a burglary of a garage in a residential neighborhood in Paterson on July 7, 2002. An off-duty police officer, Detective Troy Bailey, was attending a family gathering at his mother's home when he observed two men he did not recognize leaving the garage area of a neighbor's home pushing a lawn mower and carrying a cooler and bags. Bailey yelled out to the two men, later identified as defendant and a confederate, Frank Gonzalez, identifying himself as a police officer. When they failed to stop, Bailey pursued the two men. Bailey found defendant hiding in bushes holding bags containing meat he had taken from a freezer in the garage. Bailey displayed his police badge and grabbed hold of defendant. Bailey asked his sister to call for police back-up and then attempted to continue his pursuit of Gonzalez while holding onto defendant.
As Bailey was doing this, defendant attempted to free himself from Bailey's grasp by elbowing and shoving him. When back-up officers in police cars approached with their sirens on, defendant intensified his efforts to escape Bailey's grasp by swinging at him with a sharp instrument, later identified as a knife, which caused serious cuts to Bailey's back, throat and face. Defendant broke free from Bailey, but the back-up officers recaptured him with Bailey's assistance.
As the officers were handcuffing defendant, he struggled to remain free. This struggle resulted in injuries to defendant. When an EMT worker responded to the scene and attempted to treat defendant, he kicked her in the chest.
Gonzalez was subsequently apprehended and testified as a witness for the State at defendant's trial. Detective Bailey's testimony regarding his apprehension of defendant was corroborated by testimony from various eyewitnesses to the incident and the back-up police officers. The EMT worker whom defendant kicked also testified for the State.
On appeal, defendant presents the following arguments:
I. THE COURT ERRED IN FAILING TO CHARGE THE JURY WITH SELF DEFENSE, THUS, DEPRIVING DEFENDANT OF A FAIR TRIAL. (Not Raised Below).
II. THE COURT'S CHARGE TO THE JURY ON THE BURGLARY AND ROBBERY COUNTS WAS ERRONEOUS AND CONFUSING, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL AND WARRANTING VACATION OF THE JUDGMENT OF CONVICTION.
A. The Court Erred In Charging The Jury On Burglary In Failing To Define All Essential Elements Of The Statute, Depriving Defendant Of A Fair Trial.
B. The Court Erred In Charging The Jury On Robbery Where It Misstated The Law.
III. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS FIRST DEGREE ROBBERY AND SECOND DEGREE BURGLARY; CONSEQUENTLY THE CONVICTIONS ON COUNT ONE AND COUNT TWO MUST BE VACATED.
IV. THE COURT IMPROPERLY DENIED DEFENDANT'S REQUEST TO DISMISS THE COUNT OF RESISTING ARREST WHERE THE STATE FAILED TO DEMONSTRATE AN ARREST OF THE DEFENDANT.
V. NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
VI. THE DEFENDANT'S SENTENCE VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE ...