On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Ind. No. 02-05-0660.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2007
Before Judges Coburn, Fuentes and Chambers.
Defendant Stephen Smith was charged with robbery, a crime of the first-degree, in violation of N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6; aggravated assault, a crime of the fourth- degree, in violation of N.J.S.A. 2C:12-1(b)(4) and N.J.S.A. 2C:2-6; possession of a weapon for an unlawful purpose, a crime of the second-degree, in violation of N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:2-6; and unlawful possession of a weapon, a crime of the third-degree, in violation of N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:2-6. A jury found him guilty of all counts on August 10, 2005. He was sentenced to imprisonment for a term of fourteen years subject to the eighty-five percent No Early Release Act period of parole ineligibility. N.J.S.A. 2C:43-7.2. He received a concurrent term of four years on his conviction for unlawful possession of a weapon, and his convictions for aggravated assault and possession of a weapon for an unlawful purpose were merged into the robbery count. He received the requisite penalties and fines. He was also sentenced to a term of five years of parole supervision upon his release from prison.
The convictions arose out of a robbery that took place on December 20, 2001, at around 12:15 p.m., on Main Street in Clifton. At that time, Argenis Reinoso, the victim of the robbery, testified that he was walking down the street when a silver Ford Probe pulled up. The passenger jumped out and asked him for directions. After responding to the inquiry, the victim began to walk away when he was grabbed from behind by the driver of the car, whom the victim identified in court as defendant. Defendant screamed "police" and slammed the victim against the car. The passenger held a gun to the victim's ribs, while defendant searched his pockets. The robbers took from the victim thirty dollars, his mortgage check, his wallet, and a gold chain with a cross, and then fled in the car.
Later that day the silver Ford Probe was found crashed into a utility pole with no occupants inside. A loaded handgun and the gold chain with the cross were found inside the vehicle. Defendant was the registered owner of the vehicle. At the police station, the victim saw the vehicle being towed in and identified it as the one involved in the robbery. He also identified co-defendant, Michael Hall,*fn1 who had been apprehended, as the passenger with the gun. In addition, the victim identified the gun and his chain with the cross. A number of days later the police came to the victim's house to show him photographs, and he was able to identify the defendant in one of the photographs.
The defense contended that defendant was not a participant in the robbery and that the victim misidentified him. Co-defendant Michael Hall, who testified for the State, said that he did not know defendant and stated that a John Walker was with him in the car on the day in question. The defense sought to establish through the testimony of defendant's mother that his car had been stolen on December 20, 2001, and that the theft was reported to the police that day. However, police records indicated that the police were told the next day, on December 21, 2001, at 9:13 a.m. that the vehicle had been stolen at 12:15 p.m. the previous day. Rejecting this defense, the jury found defendant guilty on all charges.
The defendant raises the following issues in this appeal in the brief submitted by his counsel:
THE TRIAL COURT COMMITTED PLAIN ERROR IN INSTRUCTING THE JURY ON ACCOMPLICE LIABILITY. (RAISED IN PART BELOW AND NOT RAISED IN PART BELOW.)
A. THE TRIAL COURT IMPROPERLY LINKED THE CRIMINAL LIABILITY OF THE DEFENDANT WITH THE CRIMINAL LIABILITY OF CO-DEFENDANT HALL. (RAISED IN PART BELOW.)
B. THE TRIAL COURT FAILED TO ADEQUATELY RELATE THE LAW OF ACCOMPLICE LIABILITY TO THE FACTS OF THE CASE. (NOT RAISED BELOW.) POINT II
THE TRIAL COURT ERRED IN NOT DISMISSING THE INDICTMENT OR DECLARING A MISTRIAL BECAUSE OF PROSECUTORIAL MISCONDUCT IN THE GRAND JURY.
A. THE PROSECUTOR FAILED TO PRESENT "CLEARLY EXCULPATORY" EVIDENCE TO THE GRAND JURY.
B. THE PROSECUTOR PRESENTED A DISTORTED VERSION OF THE FACTS TO THE GRAND JURY.
THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE OUT-OF-COURT IDENTIFICATION BY MR. REINOSO WAS UNRELIABLE AND TAINTED HIS SUBSEQUENT IN-COURT IDENTIFICATION.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE BECAUSE THE STATE FAILED TO PROVE IDENTITY BEYOND A REASONABLE DOUBT.
PERMITTING MR. REINOSO TO MAKE A STATEMENT TO THE JURY CORRECTING HIS TRIAL TESTIMONY DEPRIVED THE DEFENDANT OF A FAIR TRIAL BECAUSE IT AMOUNTED TO A JUDICIAL ...