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State v. Miller

October 18, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARY SCOTT MILLER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-02-0155.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 19, 2007

Before Judges Parker and Lyons.

Defendant Gary Scott Miller appeals from his conviction on second-degree robbery charges and from the sentence imposed. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

In September 2004, the victim, Aurelio Tepo-Tula, worked at a restaurant in Passaic. Tepo-Tula was employed in the kitchen and usually worked until 3 a.m. On September 6, 2004, Tepo-Tula got out of work at 4 a.m. and began his fifteen-minute walk home. That evening, he had gotten paid $380 in cash, two $50 bills and the rest in $20 bills, which he placed in his back pocket. When Tepo-Tula reached the corner of Monroe Street and Leonard Place, he was approached from behind by two men, one of whom grabbed Tepo-Tula's arm and held it behind his back and forced Tepo-Tula face down on the ground. The other man checked Tepo-Tula's pockets and took the $380. Tepo-Tula never saw the men's faces. While still lying on the ground, Tepo-Tula observed the men running away down Leonard Place. Tepo-Tula could tell that the men were black, one of the men had a shaved head and wore a black shirt, and the other had a handkerchief on his head.

As Tepo-Tula was getting up, Sergeant Cruz from the Passaic Police Department pulled up in a police car. As Sergeant Cruz was driving west on Monroe Street, he had seen Tepo-Tula staggering and two men running away from him down Leonard Place. Sergeant Cruz observed that both men were black, one man was wearing a white shirt, the other man was wearing a black shirt, and both men were wearing jeans. Sergeant Cruz then notified headquarters that there was a possible robbery and pulled up to Tepo-Tula. Sergeant Cruz testified that he then asked TepoTula, in Spanish, "What happened?" to which Tepo-Tula replied, "Those two just robbed me," and pointed. However, Tepo-Tula testified that Sergeant Cruz asked him where the men had gone, and he pointed, but that Sergeant Cruz did not ask what happened until he told him to get into the police car. Sergeant Cruz testified that he told Tepo-Tula to stay put and then radioed in a description of the men and their location. Sergeant Cruz then continued down Monroe. As he passed Martha Street, he looked down it and saw one of the men run across.

Sergeant Cruz then met up with Officer Leonhard and his K-9 police dog, Storm. Officer Leonhard directed Storm to begin tracking at the corner of Martha and Madison. Storm led Officer Leonhard between the buildings at 280 and 282 Madison Street into the backyard. Storm began circling near a fence between 280 and 278, but Officer Leonhard pulled Storm off the scent at that point because the backdoor of one of the houses was open and, for safety reasons, he never passes an open door. Officer Leonhard then approached the door and, yelling loudly, advised anyone inside that he was about to release his dog.

At that point, Officer Hernandez, who was in the yard next door, yelled that he had found defendant. Defendant was lying in tall grass next to a garage. Officer Hernandez then ordered defendant to stand up which he did. Defendant was wearing jeans and a black hooded shirt, with the hood up. Tepo-Tula was brought to the scene where he identified defendant as one of the men who attacked him. Defendant was then taken into custody and searched. Three hundred dollars was found on defendant; there were two $50 bills and the rest were $20 bills.

On February 10, 2005, a Passaic County Grand Jury returned an indictment charging defendant Gary Scott Miller with second-degree robbery, contrary to N.J.S.A. 2C:15-1. The case was tried over four days, and on October 21, 2005, the jury found defendant guilty of second-degree robbery.

On January 30, 2006, the trial judge denied defendant's motion for a new trial. The judge then sentenced defendant to a thirteen-year discretionary extended term, with an eleven-year-and-seventeen-day period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, as well as all required penalties and fines.

On April 19, 2006, defendant filed a notice of appeal. On appeal, defendant presents the following arguments for our consideration:

POINT I

IN REFUSING TO PERMIT DEFENSE COUNSEL TO CROSS-EXAMINE THE ALLEGED VICTIM ON HIS ILLEGAL IMMIGRATION STATUS FOR THE PURPOSE OF IMPUGNING HIS CREDIBILITY, THE COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO CONFRONT WITNESSES AND TO PRESENT A DEFENSE.

POINT II

THE PROSECUTOR'S IMPROPER COMMENTS IN SUMMATION DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE ...


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