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State v. Diaz

March 11, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MIGUEL DIAZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-06-0696.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 13, 2008

Before Judges Winkelstein and Yannotti.

Defendant was charged under Mercer County Indictment No. 05-06-0696 with second-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); third-degree attempt to commit theft by unlawful taking, contrary to N.J.S.A. 2C:20-3a and N.J.S.A. 2C:5-1 (count two); and fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(2) (count three). Tried to a jury, defendant was found guilty of all charges. At sentencing, the judge merged count two with count one, and sentenced defendant to a seven-year term of incarceration on count one, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also sentenced defendant to a concurrent twelve-month term on count three. Defendant appeals from the judgment of conviction entered on March 3, 2006. We affirm.

I.

We briefly summarize the evidence presented at trial. On March 20, 2005, at approximately 9:00 p.m., Officers Luis Baez and Israel Bonilla of the Trenton Police Department were on patrol in an unmarked police vehicle in the area of Hudson Street in Trenton. Baez testified that he observed a person, who he eventually identified as Manuel Reyes, stumbling and staggering down the street. Baez believed that Reyes was intoxicated. Baez and Bonilla followed Reyes and observed him from their vehicle. Baez and Bonilla were both dressed in jeans and a shirt. Baez was wearing a jacket which said "Police" and his badge was hanging around his neck.

The officers pulled over on Hudson Street near Conley's Alley. Baez said that the police vehicle was on the opposite side of the street but he could see down the alley, which was illuminated by lights on lamp posts. Baez observed Reyes walk down the alley towards Roebling Avenue. Reyes was "staggering back and forth[.]"

Two men approached Reyes. Baez said that one of the men punched Reyes "right in the face[.]" He struck Reyes "with a full swing[.]" Reyes fell down on his back. The man who struck Reyes hunched over him and rifled through his jacket and pants. Baez said that he believed that he had witnessed a robbery.

The officers activated the lights and siren on the police vehicle. Baez stated that the vehicle has emergency red lights on the front grill. He described the siren as "[v]ery loud." Baez said that he caught a "real brief" look at the suspect. The officers drove into the alley.

The suspect looked up and ran. The officers followed the suspect towards Roebling Avenue. They turned left on Roebling and called out to the suspect to stop. The suspect stopped briefly. The officers stopped their vehicle and got out. Baez said that the suspect then fled on foot. The officers caught up with the suspect and, with the assistance of other officers, arrested him. Baez identified defendant as the suspect.

Baez testified that he and a detective "pat frisked" defendant. They did not find anything on his person that had been taken from the victim. Baez asserted that, later that evening, he had an opportunity to see and speak to Reyes. Baez stated that he detected the odor of an alcoholic beverage on Reyes. Reyes also had a "little bit of swelling on the right side of his face."

Bonilla's testimony was substantially the same as that provided by Baez. Bonilla said that on the night in question, he was on patrol with Baez. He saw Reyes walking down Conley's Alley towards Roebling Avenue. Reyes was approached by two men and one of the men struck Reyes in the face with his right hand. Reyes fell to the ground, and the assailant started going through his pockets. Regarding the lighting in the alley, Bonilla said that the alley "was pretty lit."

Bonilla also stated that he and Baez activated the lights and siren of their police vehicle. The suspect looked up. According to Bonilla, the suspect was surprised and "took off running[.]" The officers chased him. They never lost sight of the suspect. Eventually, he was apprehended on Hudson Street. Bonilla also identified defendant as the suspect. He said that he was "positive" that defendant was the person he chased and eventually apprehended.

Reyes testified that on the evening of March 20, 2005, he had been drinking at the White Horse bar in Trenton. Reyes left the bar at around 9:30 p.m. He said that he had consumed nine beers and "felt very drunk." Reyes headed home. He proceeded down Hudson Street and turned into Conley's Alley. Reyes said that in the alley, a person hit him and he fell to the ground. According to Reyes, the person who struck him put his hand into the pocket of Reyes' jacket but nothing was taken. Reyes picked himself up and went home. He said that he felt "all dizzy and stuff." Reyes did not see the man who struck him.

Kendel Blanco also testified. On March 20, 2005, Blanco was residing on Fulton Street and there is an alley in the rear of his home. Around 9:00 p.m., Blanco was in his kitchen and he looked out the window towards the alley. Blanco saw Reyes, who he described as his "neighbor."

Blanco said that another man approached Reyes from a different direction and punched him. According to Blanco, a third man was walking in the alley when this occurred "but that person had nothing to do with it." Blanco stated that there were no street lights in the alley but he conceded that photographs showed street lights in the alley. Blanco asserted that it was dark. Blanco said that he came out of his house and asked Reyes if he was alright. Blanco saw a police car pass quickly but he did not see the man who struck Reyes.

The defense presented testimony from Martin Alvarez, an investigator. Alvarez had interviewed Reyes at his home sometime after the incident. Reyes told Alvarez that he had been drinking at the White Horse bar and left to return to his home on Fulton Street. Reyes said that he was drunk. Reyes said that he was struck in the alley by a man. It was very dark. Reyes screamed for help. He stated that the perpetrator did not have time to go through his pockets. According to Alzarez, Reyes asserted that the perpetrator never tried to rob him.

Defendant also testified. He stated that on the evening of March 20, 2005, he was at the White Horse bar with a friend named Cesar. Defendant asserted that he and Cesar left the bar around 8:30 p.m. or 8:45 p.m. They walked down Roebling Avenue and Cesar decided that he wanted to go home. Defendant and Cesar turned into the alley to take a shortcut. Defendant said that another man approached them. Defendant asserted that the man raised his hand and defendant thought the man was going to strike him. According to defendant, the man had a beer bottle in his hand.

Defendant said that he hit the man but insisted that he "never took anything from him." Defendant stated that he struck the man, not because he wanted to rob him, but because defendant had money in his pocket. The man fell to the ground and defendant asserted that he did not do anything.

Defendant further testified that he saw a car approaching with high beams. He stated that he "ran fast" because he believed the man's family members were in the car. Cesar ran away. Defendant also ran. He said that he did not see any police lights and did not hear the siren. Defendant stated that he did not know that police officers were in the car.

Defendant also said that when he was arrested, he had $20 in his possession, along with some coins. He insisted that he did not know that Reyes was in the White Horse bar that evening. Defendant stated that he did not rob or attempt to rob Reyes. He asserted that he did not "need to" rob Reyes because he had his own money. Defendant said that he did not go through Reyes's pockets.

In this appeal, defendant raises the following arguments for our consideration:

POINT I:

THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO CROSS-EXAMINE DEFENDANT REGARIDNG CRIMINAL CHARGES DISMISSED IN A PREVIOUS CONVICTION.

POINT II:

THE TRIAL COURT ERRED IN CHARGING THE JURY ON FLIGHT BY A DEFENDANT.

POINT III:

THE PROSECUTOR'S CROSS-EXAMINATION OF DEFENDANT DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT IV:

THE COURT'S JURY CHARGE ON THE CRIME OF RESISTING ARREST WAS MISLEADING ...


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