On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-06-0591.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
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)
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).
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)
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)
DEFENDANT'S SENTENCE MUST BE REDUCED OR REMANDED; THE INDIVIDUAL SENTENCES ARE EXCESSIVE, AND THERE WAS NO STATEMENT OF REASONS TO SUPPORT THE ...