On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-03-0338.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Stern and C. S. Fisher.
Defendant was convicted of carjacking in violation of N.J.S.A. 2C:15-2a and 2C:2-6 (count one), but found not guilty of two counts of robbery and various weapons offenses (counts two through seven), and was sentenced to the custody of the Commissioner of the Department of Corrections for thirteen years with 85% to be served before parole eligibility under the No Early Release Act (NERA).
On this appeal defendant argues:
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (NOT RAISED BELOW)
THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF CARJACKING WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW)
THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF CARJACKING WAS ILLOGICAL, INCONSISTENT AND THE RESULT OF COMPROMISE. (NOT RAISED BELOW) POINT IV THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Except to the extent developed herein, we find no merit to these contentions nor need for extended discussion. See R. 2:11-3(e)(2).
On August 9, 2003 at approximately 1:00 a.m., Estela Castillo was driving her parents' four-door Toyota Camry in which her friend Susanna Chavez was a passenger. Estela "parallel parked" the car and moved to the back seat after her boyfriend, Rolando Gonzalez, entered the vehicle and sat behind the driver's seat. Estela, Susanna and Rolando spent about twenty minutes "just . . . talking" and "listening to music," while Rolando was "counting his money" from a paycheck that he had just cashed. Susanna then saw two people approach the car from behind. One man approached Rolando with a gun "wrapped around a towel," "put [the] gun to [Rolando's] face" and told him to "give me the money, give me the money." Estela testified that she "thought it was just a joke, 'cause [the man who approached Rolando] didn't look so serious," but Rolando gave him the money "right away" as soon as he saw the gun. The man with the gun also "patted down" both Rolando and Estela while they were in the car. Rolando put his cell phone between Estela's legs and tapped her leg to indicate that "it was serious." Rolando and Estela then exited the car. Estela added that, at that point, "the guy had the gun right there in my face."
According to Estella the second man "was on his cell phone" and had "a black shirt or something wrapped around his arm" along with "something shiny" in the hand that was not holding the phone. He opened the driver's side door. Susanna, who had moved to the driver's seat, got out of the car while the man got into the driver's seat.
On cross-examination, Estela stated that the man talking on the cell phone, later identified as defendant, never threatened anyone, nor did he have a gun. Susanna also testified that one of the perpetrators "was talking to the cell phone" but she could not hear what he was saying and he said nothing to Estela, Susanna, or Rolando. Estela further testified that the man "on the [cell] phone got into the driver['s] side," and "[t]he one with the gun got into the back" on the driver's side. Rolando also testified in a deposition*fn1 that the assailant without a gun was holding a cell phone.
Damion Hansby, a co-defendant, testified for the State pursuant to a guilty plea to second degree robbery resulting from the incident.*fn2 He testified that he got into the car with defendant and Cheyenne Barrett. Hansby asserted that he never saw defendant talking on a cell phone during the course of the incident and only saw Barrett on the telephone. Cell phone records obtained by the police for the telephone recovered with the car showed that a call was received from "name ...