On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-08-0840 and 05-11-1236.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Simonelli.
A jury convicted defendant Roger Gavarette-Perez of first degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); third degree possession of a weapon (nail file) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (count two); fourth degree unlawful possession of a weapon (nail file), contrary to N.J.S.A. 2C:39-5d (count three); and fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2a (count four). Following the trial, defendant pled guilty under a separate indictment to fourth degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d. In exchange for the plea, the State agreed to recommend a nine-month term of imprisonment to run concurrent to the sentence imposed on the conviction.
At sentencing, the judge merged counts two and three into count one and imposed a ten-year term of imprisonment with an eighty-five percent parole ineligibility period.*fn1 The judge also imposed a concurrent nine-month term of imprisonment on count four, a concurrent nine-month term of imprisonment on the separate charge, and the appropriate assessments and penalties.
On appeal, defendant raises the following contentions:
POINT I: THE JUDGE'S WOEFULLY INSUFFICIENT CHARGE ON ACCOMPLICE LIABILITY, WHICH WAS NOT TAILORED TO FACTS OF THE CASE, WHICH FAILED TO CHARGE LESSER-INCLUDED OFFENSES, AND WHICH FAILED TO SPECIFY THE ELEMENTS OF ACCOMPLICE LIABILITY, DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below)
POINT II: THE COURT ERRED WHEN IT FAILED TO CHARGE THE JURORS, PURSUANT TO STATE V. HARMON [104 N.J. 189 (1986)], THAT IF [DEFENDANT ] ARMED HIMSELF WITH A NAIL FILE AS A PRECAUTION AGAINST AN ATTACK BY ANOTHER, THIS CONSTITUTED A DEFENSE TO THE CHARGE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE. (Not Raised Below)
POINT III: THE PROSECUTOR COMMITTED MISCONDUCT BY DISCREDITING DEFENDANT'S TESTIMONY BASED ON HIS STATUS AS A CRIMINAL DEFENDANT AND BASED ON EXTRA-RECORD INFORMATION, AND BY VOUCHING FOR THE STATE'S WITNESSES' CREDIBILITY BECAUSE IF THEY WERE LYING, THEY WOULD HAVE TOLD A "BETTER STORY." (Partially Raised Below)
POINT IV: THE JUDGE'S INSTRUCTIONS REGARDING DEFENDANT'S STATEMENTS TO THE POLICE WERE INADEQUATE, AS HE: ONLY DISCUSSED THE STATE'S VERSION OF THE FACTS, FAILED TO INSTRUCT JURORS TO DISREGARD THE STATEMENTS IF THEY DEEMED THEM INCREDIBLE, AND FAILED TO DISCUSS THE LANGUAGE BARRIER. (Not Raised Below)
POINT V: DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, AS COUNSEL FAILED TO RAISE THE ISSUES ADDRESSED IN POINTS I THROUGH IV.
We reject these contentions and affirm.
On May 12, 2007, Ermes Rodriquez (Rodriquez) went to a nightclub in Elizabeth. At approximately 11:30 p.m. he left the club and went to a nearby restaurant. Upon leaving the restaurant, Rodriquez noticed two unknown men approaching him from behind. Rodriguez began walking faster because he saw one of the men holding what he thought was a knife. The two men followed Rodriguez, with one saying in English "to wait and give [me] the money." Rodriguez ran to the club, opened the front door, and told a security guard what was happening.
Officer Michael Niewinski (Niewinski) and Detective David DeRosa (DeRosa) of the City of Elizabeth Police Department were working an "extra duty assignment" at the club and were in full uniform, sitting in an unmarked police car outside the club. At approximately midnight, the officers observed two men running down the street. One of the men, later identified as defendant, appeared to be chasing the other, later identified as Rodriguez. While watching the men, DeRosa saw a silver object in defendant's hand that he thought was a knife. When Rodriguez reached the door of the club, defendant stopped, turned around, and quickly walked away. The officers left their vehicle to see what was going on. Rodriguez said to DeRosa, "that guy just tried robbing me," and pointed in defendant's direction. Defendant then ran from the club.
The officers returned to their vehicle and located defendant on Elizabeth Avenue. DeRosa pulled the vehicle across a driveway, striking defendant and blocking his path. The officers exited the vehicle and ordered defendant to stop, but defendant ran. The officers returned to the vehicle and followed defendant until he ran down an alleyway, where a foot chase ensued. DeRosa saw defendant attempting to jump a fence with what appeared to be a knife in his right hand. DeRosa drew his weapon and ordered defendant to freeze and drop the object. Defendant climbed down from the fence and ran towards Niewinski. DeRosa yelled to Niewinski that defendant was heading toward him and that defendant had a knife.
Niewinski drew his weapon and, in English, ordered defendant to "show me your hands or I'll shoot you[.]" Defendant placed his empty hands in the air. After tackling defendant to the ground and handcuffing him, Niewinski checked the area with a flashlight and found a four to five inch silver nail file approximately five feet from where defendant lay. Two back-up officers brought Rodriguez to the scene, where he identified defendant as the person who tried to rob him.
Defendant was arrested. At police headquarters, all of the booking procedures were conducted in English, and all of defendant's statements were in English. During the booking procedure, defendant told DeRosa that he was homeless and "That's the reason why I rob because I'm hungry and I'm homeless." Defendant denied this at trial.
According to defendant, he was the victim of a robbery two days prior to the incident, which he reported to the police. He claimed that at gunpoint, a group of men took his resident card, his social ...