On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 04-08-0341-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Coburn and Grall.
Defendant Troy Williams appeals from a final judgment of conviction that was entered after a judge of the Family Part waived that court's jurisdiction over a delinquency complaint. The jury found defendant guilty of second-degree robbery, N.J.S.A. 2C:15-1, and he was sentenced to a five-year term of incarceration.*fn1 Pursuant to the No Early Release Act, defendant must serve eighty-five percent of that term without possibility of parole and a subsequent two-year term of parole supervision. N.J.S.A. 2C:43-7.2. The judge also required defendant to pay restitution in the amount of $240.90 and imposed a $50 VCCB assessment, a $75 SNSF assessment and a $30 LEOTEF penalty. For the reasons set forth below, we affirm.
Brian Caffarelli, the victim of the crime, described the robbery at trial. On the night of February 5, 2004, Caffarelli, an employee of a pizzeria, was dispatched to make a delivery to a residence in "the projects" in Phillipsburg. Because he was not certain about the exact location of the residence, he parked in the circle at the end of the street. He noticed three men standing next to a car parked nearby. Two of them, defendant and an older man, approached him. To Caffarelli, the older man appeared intoxicated. He had a bottle in his hand and Caffarelli could smell liquor on his breath. Commenting on Caffarelli's race, the intoxicated man asked Caffarelli what he was doing in his area. Defendant intervened and told his companion that he knew Caffarelli from school. Caffarelli recognized defendant, whom he had known since middle school. He concluded that defendant was "sticking up" for him.
Caffarelli also testified to the following. Defendant asked Caffarelli if he needed help and offered to lead him to the right address. Caffarelli followed defendant, and the intoxicated man followed behind. When they reached the last dwelling, near the train tracks and woods, Caffarelli realized that the street addresses were not right. At that point, he and defendant were walking next to one another. The intoxicated man closed in from behind. The pizzas were taken, Caffarelli's money was taken and his hat was removed. After the pizza and money were stolen, the intoxicated man grabbed Caffarelli's arm. They slipped on the snow, and Caffarelli fell to the ground. He did not know whether the intoxicated man fell. He got up on his hands and knees, lifted his face and saw a fist. "It was just like bam right in the face." It was a "hard hit," and he saw "stars." That punch was the only blow delivered. Defendant was the one who hit him. Caffarelli managed to get to his car and return to the pizzeria. He was short $300 in cash, and there was a welt on his head.
The police were called to the pizzeria. Caffarelli gave the officers defendant's first name and told them that he knew defendant and would be able to find him in the yearbook from their middle school. He described defendant as "clean-shaven" and subsequently identified defendant's photograph.
Caffarelli's testimony at trial was not entirely consistent with information he gave to investigating officers. He told the officers he had "no idea" who threw the punch. When questioned in front of his boss and co-workers, he said that he was overcome by three men. At the police station, however, Caffarelli admitted that only two men were involved. At trial, Caffarelli explained that he embellished the account that he gave when questioned in the presence of his boss and co-workers because he was embarrassed to admit that he trusted and was fooled by defendant.
On the basis of the foregoing evidence, the jury found defendant guilty of second-degree robbery.
Defendant presents the following issues on appeal:
I. DEFENSE COUNSEL DEPRIVED [DEFENDANT] OF EFFECTIVE ASSISTANCE OF COUNSEL AT THE REFERRAL HEARING BY HIS FAILURE TO OBTAIN A PSYCHIATRIC EVALUATION. FURTHERMORE, THE WAIVER COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO ORDER A PSYCHIATRIC EVALUATION UNDER R. 5:3-3. (Not Raised Below)
II. [DEFENDANT] WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S MISCONDUCT DURING SUMMATION. (U.S. CONST. AMEND. XIV; N.J. CONST. ART. 1, ¶ 10). (Partially Raised Below)
III. THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE AN INSTRUCTION PURSUANT TO STATE V. BIELKIEWICZ, WHICH DEPRIVED THE JURY OF THE OPPORTUNITY TO PROPERLY CONSIDER THE ...