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State v. Stokes

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 14, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY K. STOKES, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-06-0591.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 21, 2008

Before Judges Lintner and Alvarez.

Tried by a jury, Anthony K. Stokes was convicted of first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree eluding, N.J.S.A. 2C:29-2(b) (count two); third-degree*fn1 aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count three); third-degree theft, N.J.S.A. 2C:20-3(a) (count four); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count five); fourth-degree criminal mischief, N.J.S.A. 2C:17-3 (count six); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count eight). On March 17, 2006, defendant was sentenced to fifteen years on count one, subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and to a consecutive seven-year sentence on count two. Counts four, five, seven, and eight all were properly merged with count one, and counts three and six were properly merged with count two. We affirm.

One of the State's principal witnesses was Joseph Kenney, a loss prevention officer at the Sam's Club in West Windsor. Kenney testified that while on duty on February 24, 2005, he noticed defendant enter the store without showing a membership card. Kenney followed defendant to the electronics department, where he placed two portable DVD players into his shopping cart, and proceeded across the store into the candy aisle. There, defendant cut the protective security packaging from one of the DVD players with a blue box cutter, approximately four inches long, and hid the DVD player inside his jacket. In Kenney's words, defendant "tampered" with the box of the second DVD player, put it back into the cart, left the cart behind, and then headed towards the front of the store. Kenney and two other loss prevention officers, Tim Pasquale and Sean Van Ness, followed defendant to the entrance door, although customers leaving Sam's Club are required to use the exit door where each customer's receipts are checked against their merchandise. Avoiding the check-out lines, defendant walked directly towards the entrance door, waited until the store greeter was distracted, and tried to leave.

When Kenney identified himself, and asked defendant to stop, defendant ran out of the store at "full speed," discarding portable DVD player components from his jacket. Kenney, Pasquale, and Van Ness pursued defendant into the parking lot. As defendant approached a blue Camry with a person seated in the front passenger-side of the car, Kenney called out to him that police had been called. Defendant turned towards Kenney and, while holding the blue box cutter out towards him said, "I'm not going back to jail. I'll cut you. I'll cut you." Kenney could not recall whether the blade was extended or retracted, but he backed away.

Meanwhile, Van Ness called the West Windsor Police Department as Pasquale was writing down defendant's license plate number. After threatening Kenney, defendant backed the Camry out of the parking spot, and drove away.

Officer Francisco LaTorre was the State's other principal witness. He reported being dispatched to Sam's Club because "they were pursuing a known shoplifter through their store." As he approached Sam's Club, LaTorre saw Kenney running and "pointing to a blue car [that] was driving erratically through the parking lot." He turned on his vehicle's overhead lights.

When the Camry came straight toward him, LaTorre swerved slightly to the right and stopped, blocking the entire lane of traffic. The Camry also swerved, struck the front of the patrol car, causing it to spin almost ninety degrees, and proceeded onto a decorative landscaped island. LaTorre radioed the station about the collision, turned on his siren, and gave chase. Defendant drove towards an exit at approximately forty-five to fifty miles per hour, proceeded without stopping through a stop sign, and made an illegal left-hand turn. Defendant turned right onto Nassau Park Blvd., passing cars on the shoulder. As he attempted to "cut back to the left," he hit the curb.

LaTorre described defendant's car as taking "off like a rocket," and then suddenly slowing down. LaTorre also tried to slow down, but defendant "made a right maneuver toward [the patrol] car," and the two cars collided. The front right corner of LaTorre's patrol car collided with the left rear corner of defendant's car, causing it to spin in front of the patrol car and stop perpendicular to it. According to Kenney, who arrived at the scene after the collision, the patrol car "T'd up" defendant's car, blocking the driver's side of the vehicle. LaTorre again radioed the police station and exited his vehicle. He drew his weapon, and ordered the occupants out of the Camry. After backup arrived, both defendant and his passenger were arrested.

A blue box cutter was recovered from the Camry's driver-side floor. Kenney retrieved the discarded DVD player from the parking lot, and estimated its value at over $200. LaTorre's lower back was injured from the first collision, and he estimated that the patrol car required between $1100 and $1600 in repairs.

The State presented to the jury a time lapse video recording of defendant selecting two portable DVD players in the electronics department and walking away. The recording also showed defendant heading out the entrance door, and then being chased by Kenney and Pasquale. Defendant is depicted holding the DVD player, and can be seen discarding it running towards his car. The recording did not show defendant cutting the security packaging on the DVD player box, nor the encounter between defendant and Kenney in the parking lot. Kenney also acknowledged at trial that he did not include any information about the box cutter, or about his fear of being cut or seriously injured, in the affidavit he completed immediately after the incident.

On appeal, defendant raises the following points:

POINT I

DEFENDANT, WHO DID NOT TESTIFY, WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE JURY HEARD, OVER AND OVER AGAIN, THAT DEFENDANT HAD BEEN IN PRISON. U.S. CONST. AMENDS VI, XIV; N.J. CONST. (1947) ART. I, PARS 1, 9, 10. (NOT RAISED BELOW)

POINT II

THE PROSECUTOR'S DESCRIPTION OF THE STATE'S EVIDENCE AS "UNCONTROVERTED" DURING SUMMATION, SHIFTED THE BURDEN OF PROOF, AND DENIED DEFENDANT A FAIR TRIAL. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (NOT RAISED BELOW).

POINT III

BY GIVING THE JURY WRITTEN OUTLINES OF THE ELEMENTS OF THE CHARGED OFFENSES AND WRITTEN DEFINITIONS OF SOME TERMS, THE COURT UNDULY EMPHASIZED SOME PORTIONS OF THE CHARGE OVER OTHERS AND DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW)

POINT IV

BY ONLY MOLDING THE JURY CHARGE TO THE STATE'S VERSION OF EVENTS, THE TRIAL COURT BECAME AN ADVOCATE FOR THE STATE AND DIRECTED THE VERDICT ON ELUDING AND AGGRAVATED ASSAULT, IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.) (NOT RAISED BELOW)

POINT V

DEFENDANT'S SENTENCE MUST BE REDUCED OR REMANDED; THE INDIVIDUAL SENTENCES ARE EXCESSIVE, AND THERE WAS NO STATEMENT OF REASONS TO SUPPORT THE IMPOSITION OF CONSECUTIVE SENTENCES.

In his pro se brief, defendant urges these points for our consideration:

POINT I

THE TRIAL COURT[']S CHARGE TO THE JURY WAS CONSTITUTIONALLY DEFICIENT, WHERE THE COURT FAILED TO INSTRUCT [THE] JURY ON "CONFLICTING INFERENCES." (NOT RAISED BELOW)

POINT II

THE TRIAL COURT FAILED TO CHARGE THE JURY ON POLICE WITNESS TESTIMONY. (NOT RAISED BELOW)

POINT III

APPELLANT WAS DENIED HIS RIGHT TO BE PRESENT AT [A] CRITICAL STAGE OF THE TRIAL, WHEN THE COURT CHARGED JURY OUTSIDE DEFENDANT'S PRESENCE. (NOT RAISED BELOW)

POINT IV

THE STATE FAILED TO ESTABLISH ALL NECESSARY AND ESSENTIAL ELEMENTS OF ROBBERY, N.J.S.A. 2C:15-1, THUS, APPELLANT'S CONVICTION IS INVALID. (NOT RAISED BELOW)

POINT V

THE STATE FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT APPELLANT USED A DEADLY WEAPON IN THE COMMISSION OF THE ALLEGED ROBBERY. (NOT RAISED BELOW).

POINT VI

THE INDICTMENT IS CONSTITUTIONALLY DEFECTIVE WHERE IT FAILS TO GIVE ADEQUATE NOTICE WHERE IT CHARGES FIRST DEGREE ROBBERY. (NOT RAISED BELOW)

POINT VII

THE TRIAL COURT IMPROPERLY IMPOSED CONSECUTIVE TERMS, THUS, ILLEGALLY INCREASING THE APPELLANT'S SENTENCE. (NOT RAISED BELOW)

POINT VIII

THE STATE FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT, THE NECESSARY ELEMENTS FOR AGGR[A]VATED ASSAULT, [SECOND] DEGREE. N.J.S.A. 2C:12-1b(6). (NOT RAISED BELOW)

i.

Defendant contends that the State's use of his statement to Kenney that he was "not going back to jail," denied him a fair trial. The prosecutor referred to the statement in opening and closing, in addition to the phrase being repeated during Kenney's testimony. No objection was made by defense counsel when Kenney testified, nor was there any objection to the references in opening or closing.

When a purported trial error is first raised on appeal, it is subject to the plain error rule, i.e., the error must be "clearly capable of producing an unjust result." R. 2:10-2. The error must be such that it would "raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Defendant's theory is that N.J.R.E. 404(b) barred admission of the statement because it was evidence of his prior criminal conduct, or bad acts. N.J.R.E. 404(b) is "a rule of exclusion rather than a rule of inclusion." State v. Marrero, 148 N.J. 469, 483 (1997). No pre-trial hearing was conducted as to the admissibility of the statement, nor was the jury charged about permitted use of the statement during deliberations.

The statement was not admitted under N.J.R.E. 404(b), in fact, there was no discussion about it at all, other than an objection to its admission via testimony from LaTorre. The prosecutor assured the court that only Kennedy would testify about the victim's threat. We consider the statement to be so inextricably a part of the incident as to constitute res gestae. "N.J.R.E. 404(b)[] does not apply when the 'other crimes' evidence is part of the total criminal conduct that occurred during the incident in question and may be considered within the res gestae of the charged crime." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995) (quoting State v. Ortiz, 253 N.J. Super. 239, 243 (App. Div.), certif. denied, 130 N.J. 6 (1992)). "Evidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury." Ibid.

Cases from other jurisdictions are enlightening. For example, in Roddy v. State, 257 N.E.2d 816, 817-18 (Ind. 1970), the Indiana Supreme Court held the statement attributed to the defendant by the victim, "I hate to do this to you but I am not going back to prison," was admissible as part of the res gestae. The defendant had just committed multiple rapes and was in the act of kidnapping his victim and threatening her with bodily harm. Id. at 818. The same conclusion was reached in Christesson v. State, 353 S.W.2d 218, 220-21 (Tex. Crim. App. 1962), where the court held that a defendant's res gestae statement that he had been in the "pen," made during the assault of his victim, was admissible. See also Carpenter v. State, 530 P.2d 1049, 1051 (Okla. Crim. App. 1975) (a defendant's res gestae statement, made during commission of rape, that he had just been released from the penitentiary, was admissible).

Only defendant's state of mind as to a potential arrest elucidates the level of threat he posed to the security guard, and explains his otherwise extreme driving conduct, including striking a marked police vehicle twice, over a botched shoplifting attempt. Without defendant's statement, his dramatic flight from an arrest for mere shoplifting, would seem even more incredible. Defendant's threat to "cut" Kenney becomes more menacing because of defendant's fear of going back to jail. The statement is part of the res gestae. Not only was it admissible, comments about it by the prosecutor in opening and closing were also permissible. State v. Bucanis, 26 N.J. 45, 56-57, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958).

Defendant also contends, for the first time on appeal, that LaTorre's reference to him as a "known shoplifter," and to the passenger in his car as having "outstanding warrants," were highly prejudicial, and violated N.J.R.E. 404(b). When LaTorre used the phrase "known shoplifter," he was describing the dispatch he received. His testimony can be understood to mean nothing more than that the individual LaTorre was sent to arrest was witnessed while shoplifting. Even if the remark is construed as defendant sees it, namely, that defendant had a prior history of shoplifting, in light of the proofs in this case the admission of the statement is not plain error.

LaTorre's statement that the passenger had outstanding bench warrants is equally harmless. The proofs in this case were so overwhelming that the admission of either statement alone or in combination was not clearly capable of producing an unjust result.

ii.

During her closing, defense counsel suggested that Kenney and LaTorre, who were acquainted with each other, had fabricated the charges against defendant. They were unacquainted with defendant, and no motive was suggested that would explain the reason they would lie. The basis for the defense argument, such as it was, was the absence of a video recording showing defendant confronting Kenney, or a video of the accident.

The prosecutor responded in summation: "the testimony of Officer Kenney and the testimony of Officer LaTorre is believable for several reasons based upon evidence, uncontroverted evidence put before you during yesterday's testimony." As a result, defendant now contends the prosecutor unfairly commented upon defendant's right to remain silent and improperly suggested to the jury that defendant bore a burden of proof.

When a prosecutor stresses a failure to present testimony, "the facts and circumstances must be closely examined to see whether the defendant's right to remain silent has been violated." State v. Sinclair, 49 N.J. 525, 549 (1967); see also State v. Jones, 364 N.J. Super. 376, 383 (App. Div. 2003). This contention, however, is also subject to the plain error review, as no objection was made earlier.

The prosecutor's characterization of the State's evidence as uncontroverted, was in direct response to the defense argument that the State's case was nothing more than fiction. "A prosecutor is permitted to respond to an argument raised by the defense so long as it does not constitute a foray beyond the evidence adduced at trial." State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied, 169 N.J. 610 (2001). When reviewing the State's response, the "court must not only weight the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo." United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 1045, 84 L.Ed. 2d 1, 11 (1985). In any event, prosecutorial misconduct is not grounds for reversal of a conviction unless it was "'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). The prosecutor's isolated reference, made without objection, did not deprive defendant of a fair trial. See Macon, supra, 57 N.J. at 333.

Furthermore, the judge instructed the jury in his closing charge that defendant had the right not to testify, and that no negative inference could be drawn from the exercise of that right. See State v. Scherzer, 301 N.J. Super. 363, 441 (App. Div.) ("Even a direct comment on a defendant's failure to testify may be cured by a judge's timely and effective action."), certif. denied, 151 N.J. 466 (1997).

Additionally, the single time the prosecutor used the phrase in summation, was during a review of the facts, and it was a reference to the absence of proof suggesting a motive for Kenney and LaTorre to fabricate a story about defendant. This instance, where the State was commenting upon the absence of evidence was precisely the type of comment about the "non-production of evidence to which [a] prosecutor may fairly refer." Sinclair, supra, 49 N.J. at 549. The statement was not plain error, and was certainly not capable of producing an unjust result in this case. Neither did the statement shift the burden of proof. The brevity of the comment in itself could not have had that effect, and the judge correctly charged on that score as well.

iii.

According to defendant, the trial court erred by providing a "one-sided, imbalanced [jury] charge," making reference only to "the [S]tate's facts and theory" of the case. These charges, defendant claims, "had the net effect of the court directing the verdict on both the aggravated assault count and the eluding count," and of depriving him of his right to due process and a fair trial. Furthermore, defendant complains, "[a]t no point did the court even imply, no less state, that the defendant denied the charges or give the jury examples of the defendant's case that were elicited through cross-examination." In fact, the judge in his preliminary and his closing charge to the jury, informed them that defendant had entered not guilty pleas to the indictment.

In the substantive charge as to the offenses, the judge of necessity referred to the statutory elements of the crimes. The court instructed the jury in accord with the model jury charges.

To do so did not oblige him to instruct the jury in some fashion as to mirror defendant's theory of the facts.

In the introductory and closing charge, the judge informed jurors as required that the State alone bears the burden of proof beyond a reasonable doubt, and about the presumption of innocence. Accordingly, the charge was not given in error.

iv.

Defendant complains, also for the first time on appeal, because the jury was given a written outline of the elements of each offense. A copy of the outline is included in defendant's appendix, and corresponds in every respect to the elements included in the model jury charges.

As applied to jury instructions, plain error requires demonstration that the legal impropriety in the charge prejudicially affected a defendant's rights to the extent that "'the error possessed a clear capacity to bring about an unjust result.'" State v. Torres, 183 N.J. 554, 564 (2005) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). It is undisputed that the complete version of the charges was orally given. To have given the jury more information than they would have received orally is not error at all, much less plain error. The judge was obliged to read the entire instruction to the jury and did so. State v. Lindsey, 245 N.J. Super. 466, 474 (App. Div. 1991). No error was committed as a result of the jurors being given an outline.

v.

Defendant, in his pro se brief, contends it was error for the Court to allow LaTorre and Kenney to testify while in uniform. Defendant asserts that Kenney testified while wearing a police uniform, because at the time of the trial he had worked as a police officer for over six months. Again, as it was not raised in the trial court, this point is also subject to the plain error standard.

"A trial judge has the ultimate responsibility to control the trial in the courtroom and is given wide discretion to do so." Horn v. Village Supermarkets, Inc., 260 N.J. Super. 165, 175 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993). "But this responsibility must be exercised reasonably and within constitutional bounds." Ryslik v. Krass, 279 N.J. Super. 293, 297-98 (App. Div. 1995). Discretion to control the courtroom has been held to include permitting a former prosecutor's investigator to testify while wearing his National Guard uniform, subject to proper cautionary instruction. Scherzer, supra, 301 N.J. Super. at 467. Indeed, "[i]f a party is a member of the armed services, a firefighter, or a priest, when appearing in court he or she should be entitled to dress in a manner ordinary to him or her." Ryslik, supra, 279 N.J. Super. at 298. The judge, however, "should appropriately charge [the jury] . . . that no undue weight should be given to the testimony of the particular witness by reason of a profession." Ibid.

There is no reported opinion in this state that requires an officer who testifies about matters related to law enforcement, to do so in civilian dress. In this case, the fact of LaTorre's profession, at least, would be known to the jury from his testimony. This witness's employment was an essential element that the State had to prove, i.e., that LaTorre was acting in his capacity as a police officer when assaulted by defendant, and that he was a police officer at the time defendant failed to heed his directive to stop.

The potential for harm when witnesses testify in uniform arises if their employment status becomes an unspoken means of making them more credible. That harm was not present here. It is not error to permit a witness to testify in uniform about events which occurred when he was engaging in security-type activities. Although Kenney was not a police officer when the incident occurred, he was acting in a law enforcement capacity when he attempted to stop defendant. Where the proofs consist of the testimony of eyewitnesses and of video recordings, Kenney's appearance while in uniform seems of little moment. The prosecutor did not refer to his uniform, or contend his job status made him more reliable.

vi.

Defendant in his pro se brief also objects to the following:

[Court]: Let me put something on the record before we bring the jury in. Just before the [c]court took a luncheon recess, a question was given to the [c]court by the deliberating panel, and I [would] just like to read it verbatim into the record. That would be C-1, and I'll take C-2 as well, which is my response. Thank you.

C-1 as marked is, "Can we be given a definition of terroristic threat?" And my response was in writing: "Members of the jury, please look to the outline given to you for terroristic threats, which sets forth the various elements or parts that constitute the crime," and that's what I had told counsel that I did. And, counsel, is there anything you want to say about that response or anything? [Prosecutor] Nothing from the State, Judge. [Defense Counsel] Nothing from the defense, your Honor.

The objection is that the court issued an ex parte response to a jury question, thereby depriving defendant of both the right to due process and a fair trial. We do not conclude from looking at the cited material that an ex parte decision was made by the judge. We believe the omission here was one of noting for the record that some off-the-record conversation occurred between counsel and the court in which they agreed that the jurors would be referred to the written instructions, as opposed to being re-charged.

If defendant's objection is that the conversation occurred outside of his presence, although a defendant has the right to be present at trial, that right is not absolute and does not extend to every aspect of the trial. State v. Morton, 155 N.J. 383, 445 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001); State v. Walkings, 388 N.J. Super. 149, 159 (App. Div. 2006). It does not include the right to participate in discussions in chambers. The off-the-record discussion between counsel and the court, therefore, did not deprive defendant of due process, nor of a fair trial. We would have been better served if the court had clarified the manner in which the agreement was reached, for the benefit of the record. In any event, defendant does not explain how directing the jury's attention to offense elements that tracked the model jury charge was error. Defendant has not demonstrated that the judge's response prejudiced his right to a fair trial in any fashion.

vii.

Defendant contends that the court erred by imposing excessive sentences, and imposing consecutive sentences, without the analysis required by State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). The judge did say that defendant's criminal history geographically spanned New Jersey, Georgia, Pennsylvania, and Florida, including forty-four adult charges, twenty-five municipal court convictions, and five superior court convictions, in addition to a number of active municipal court bench warrants. Defendant, who was forty-five at the time he was sentenced, was in arrears on child support some $40,000. Not surprisingly, the judge found defendant's prior criminal history to warrant aggravating factors three, six, and nine. N.J.S.A. 2C:44-1(a)(3), (6), (9). Despite the absence of mitigating factors, the court sentenced defendant at the midpoint of the range, fifteen years for the first-degree robbery, and seven years for the second-degree eluding.

Defendant's sentence does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984). If anything, it is favorable to defendant, in the mid-range despite the entire absence of mitigating factors. The sentence is clearly within the sentencing guidelines. The court found appropriate facts necessary for imposition of aggravating factors three, six, and nine, and there was nothing "'clearly mistaken'" in the sentencing decision. State v. Evers, 175 N.J. 355, 386 (2003) (quoting State v. Jabbour, 118 N.J. 1, 6 (1990)).

Although he did not articulate his reasons for the consecutive sentence, the judge described defendant's conduct to the point at which he left the parking lot as distinctly separate from the subsequent conduct related to the eluding. The judge specifically said defendant "[e]xpos[ed] others who were utilizing the roadways, the parking lot and the area there both as to pedestrians and other operators of motor vehicles in a peaceful way" to danger. It is clear from his discussion of the facts that he believed that two discrete crimes were committed which warranted separate sentences.

Although the crime of robbery immediately preceded the crime of eluding, the crimes were predominantly independent of each other, involved different objectives, different victims, separate acts of violence or threats of violence, and warranted the imposition of consecutive sentences. The court's focus on the facts was sufficient in this instance. See State v. Ghertler, 114 N.J. 383, 392 (1989) (approving consecutive sentences even though only "terse" reasons were given). Accordingly, we affirm the judge's sentencing decision.

viii.

We will not address defendant's pro se arguments as to the sufficiency of the indictment, guilt beyond a reasonable doubt, or the aggravated assault conviction. We consider them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The following comments are appropriate, however.

Defendant contends that his aggravated assault conviction should be reversed because the State did not prove that he caused serious bodily injury to LaTorre, or that he purposely or knowingly attempted to cause LaTorre serious bodily injury. This is a misunderstanding. The State was not required to prove either serious bodily injury or an attempt to cause serious bodily injury. Defendant's third-degree aggravated assault conviction requires only that the State prove beyond a reasonable doubt that defendant recklessly caused bodily injury to a law enforcement officer acting in the performance of his duties while in uniform. N.J.S.A. 2C:12-1(b)(5).*fn2

The only other issue that warrants brief comment is defendant's objection that when during the sentencing hearing he argued that he was guilty only of "petty things," not a robbery, the judge cut him off, and told him he did not want to hear any more about his innocence as the jury had spoken. The right to allocution is a common-law right honored in New Jersey. State v. Loftin, 146 N.J. 295, 362 (1996). It does not include, however, the right "to argue legal points, advance or dispute facts," or even attempts made by a defendant "to exculpate himself." Ibid. Accordingly, the court acted within its discretion when it limited defendant's assertions of innocence.

Affirmed.


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