On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-01-00002 and 06-01-00003.
The opinion of the court was delivered by: Graves, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges Lintner, Graves and Sabatino.
On June 1, 2006, following a jury trial, defendant Maribel Rolon was convicted of first-degree robbery by knowingly using force upon another while armed with a deadly weapon or threatening the immediate use of a deadly weapon, N.J.S.A. 2C:15-1(a)(1) (count one), and fourth-degree possession of a knife under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d) (count six). Defendant was acquitted of counts two through five of Indictment No. 06-01-00003: first-degree robbery by threatening another with bodily injury or purposely putting another in fear of immediate bodily injury while armed with or threatening the immediate use of a deadly weapon, N.J.S.A. 2C:15-1(a)(2) (count two); second-degree aggravated assault by attempting to cause serious bodily injury, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree aggravated assault by attempting to cause bodily injury with a knife, N.J.S.A. 2C:12-1(b)(2) (count four); and third-degree possession of a knife with intent to use it unlawfully, N.J.S.A. 2C:39-4(d) (count five). While the jury was deliberating, defendant pled guilty to the single count of Indictment No. 06-01-00002, fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(a).
At sentencing, count six was merged into count one and defendant was sentenced to a twelve-year state prison term on the first-degree robbery conviction, subject to an eighty-five percent parole ineligibility period under the No Early Release Act, N.J.S.A. 2C:43-7.2. She was also sentenced to a concurrent eighteen-month prison term for fourth-degree possession of a weapon by a convicted person.
On appeal, defendant presents the following arguments:
THE TRIAL COURT ERRED IN CHARGING THE JURY THAT DEFENDANT'S INTENT WITH RESPECT TO THE USE OF A WEAPON IS IRRELEVANT FOR DETERMINING WHETHER DEFENDANT IS ARMED WITH A DEADLY WEAPON FOR PURPOSES OF FIRST[-]DEGREE ROBBERY; THEREFORE, DEFENDANT WAS DEPRIVED OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
THE TRIAL COURT'S FAILURE TO EXPLAIN FIRST[-]DEGREE ROBBERY WITH REFERENCE TO THE CONFLICTING FACTS OF THE CASE AND INCLUSION OF ELEMENTS THAT SHOULD NOT HAVE BEEN CHARGED, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
THE INCONSISTENT VERDICTS ON THE TWO COUNTS OF FIRST[-]DEGREE ROBBERY AND POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE CLEARLY DEMONSTRATE THAT THE JURY WAS MISLED BY THE JUDGE'S ERRORS IN THE INSTRUCTIONS ON FIRST[-]DEGREE ROBBERY; AS A RESULT, DEFENDANT WAS DEPRIVED OF DUE PROCESS OF LAW AND THE RIGHT TO ...