On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-05-1040.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 24, 2007
Before Judges Cuff and Simonelli.
Following a jury trial, defendant Jesus Rodriguez was convicted of burglary, contrary to N.J.S.A. 2C:18-2 (Count One) and theft of property, contrary to N.J.S.A. 2C:20-3 (Count Two).
Defendant was sentenced to an extended term of ten years imprisonment with five years parole ineligibility on Count One and a concurrent 180 days in the county jail on Count Two. The appropriate fines, assessments and penalties were also imposed. Due to repeated instances of vouching for the credibility of the State's primary witnesses and reference to evidence outside of the record designed to bolster the State's case, we reverse and remand for a new trial.
On April 7, 2005, Setara Pervin drove her husband's 2004 gray Nissan Altima to work. She parked the car on the street in front of the old city hall in Atlantic City, near the Hilton where she worked. When she returned to retrieve her car between 3:30 and 4:00 p.m., the car was gone. Thinking that her husband had taken the car while she was at work, she called him. He informed her that he had not taken the car and that she should call the police. Mrs. Pervin did so and learned that her car had been towed by the police.
On April 8, Sheikh Faroque, Setara Pervin's husband, inspected the car and found a broken small right rear window. The manufacturer-installed stereo/CD player was also missing. Neither Pervin nor Faroque gave defendant or anyone else permission to enter their car or to remove the stereo.
In the early afternoon of April 7, city maintenance workers Glenwood Kidd and Tarus Nattiel stopped their truck in front of the old city hall. The truck was next to Setara Pervin's car. Kidd and Nattiel looked in the car and saw a man in the backseat. Kidd remarked that the man was sweating profusely. Kidd and Nattiel saw the man reaching between the driver's seat and the front passenger seat trying to remove the car stereo. Kidd saw a screwdriver in his hand; Nattiel did not see a screwdriver, but thought the man had something in his hand. Kidd and Nattiel also observed that the right rear window "was busted out."
Kidd and Nattiel decided to perform their assigned work at the park but continued to observe the man in the car. When Kidd observed the man leave the car carrying a dark backpack and walk away from the car, he decided to follow him. Kidd kept about a half-block distance between himself and the man and followed him for about three and one-half blocks. Kidd never lost sight of the man. When Kidd saw two uniformed police officers, he advised them what he had seen and pointed out the man he had been following.
Daniel Rispoli, a twenty-four year veteran of the Atlantic City Police Department, was sitting in a marked police car speaking to another officer when Kidd approached him. Kidd pointed to the man he had been following and told Rispoli that the man had just removed something from a car. Rispoli moved his car, parked it and began to follow the man identified by Kidd. He called to the man to stop but the individual kept walking. Eventually, the man turned and looked at Rispoli, who identified himself as a police officer. The man turned, shed his backpack and ran out of Boston Court into a parking lot.
Rispoli followed the man. He chased him, losing sight of him only when the man made a right turn at Boston Avenue. Having been advised by the officers in another patrol car that they had not seen anyone running towards the intersection of Boston and Atlantic Avenues, Rispoli entered a vacant lot on Boston Avenue between two houses. There, he observed the silhouette of man leaning against a house with a 4' x 8' piece of plywood leaning against him. Rispoli removed the board and placed the man in custody. The man was wearing the same clothing, a brown or beige jacket and jeans, as the man identified by Kidd and whom Rispoli had chased into the vacant lot.
Once Rispoli had the man in custody, he asked Kidd to come to the area. Kidd identified the man in custody as the man he had observed in the car and had followed for several blocks. That man was later identified as defendant. At trial, Kidd was not able to identify defendant as the man he had followed and identified at the scene while the man was being placed under arrest. Rispoli, however, was able to identify defendant as the man he had chased and arrested on April 7.
In the city truck, Nattiel followed Kidd in pursuit of the man they observed in the gray Nissan. Nattiel admitted that he lost sight of the man. He also admitted that he did not get a good look at the man in the car. He thought the man might be ...