February 25, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHIRLEY LANE, A/K/A SHIRLEY THOMAS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-04-0863.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2009
Before Judges Graves and Grall.
Defendant Shirley Lane appeals from a final judgment of conviction and sentence. A jury found defendant guilty of second-degree robbery, N.J.S.A. 2C:15-1. The trial court sentenced defendant to an eight-year term of incarceration subject to terms of parole ineligibility and parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and imposed a $100 VCCB assessment, a $75 SNSF assessment and a $30 LEOTEF penalty.
Cecilia Smith and her friend James Rose went to a casino transportation center in Atlantic City. Smith left Rose to use the restroom, and he waited for her outside. Smith did not see anyone when she entered the restroom, but as she left the stall she saw defendant. Defendant attacked Smith from behind, pushed her head down and into the sink, punched her in the face, took two chains from her neck and attempted to take a ring off her finger. Smith fled the restroom, told Rose what happened and identified defendant as she came through the doorway. Rose called to defendant, and she stopped. A security guard who arrived at the scene observed a thin red mark on Smith's neck. He took Smith and defendant to his office in the casino and summoned the police.
The police arrested and searched defendant and found Smith's broken necklaces and a barrette she was wearing when defendant attacked her. A nurse treated Smith's reddened and swollen face with icepacks.
Defendant's version of her encounter with Smith was quite different. She claimed that she saw Smith and Rose fighting outside the restroom. She was in the restroom when Smith came in. Smith, who was crying, told defendant that Rose had taken her money and she had no way to get home, and defendant agreed to give her twenty dollars for her necklace. Defendant said she later found Smith's barrette on the restroom floor.
Smith, Rose, the security guard, the nurse, the arresting officers and defendant testified at trial. In closing argument, defense counsel suggested that because the security guard and the police had been too willing to accept Smith's account, they failed to conduct a thorough investigation of the crime scene. He compared the investigation with those depicted in a popular television crime drama in which physical evidence proves that the officers' first impressions are wrong.
The assistant prosecutor argued that this "attack was real" and contended that the defense was "trying to distract [the jurors] with things such as shoddy police work, a noisy transportation center, an exchanged $20 for a broken chain," which was a "completely and totally ridiculous" story. Referencing the absence of any evidence suggesting that the attack did not occur, the prosecutor asked the jurors to consider why Smith would "have any reason to make any of this up." She noted that defendant had "every reason to lie" and observed if you believe that any witness willingly or knowingly testif[ied] falsely about the material facts in the case with the intent to deceive you, and I submit that that's exactly what [defendant] did when she took the stand, you may believe some of it, or you [may] believe none of it.
Defense counsel did not object during or after the prosecutor's summation.
Defendant raises the following issues on appeal:
I. [DEFENDANT] WAS DEPRIVED OF HER RIGHT TO A FAIR TRIAL BY THE PROSECUTOR'S HIGHLY IMPROPER SUMMATION, IN WHICH SHE VOUCHED FOR SMITH'S CREDIBILITY AND CONTRASTED HER WITH [DEFENDANT], WHO, ACCORDING TO THE PROSECUTOR, HAD A "REASON TO LIE." (Not Raised Below)
II. BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT ROBBED THE COMPLAINANT, THE CONVICTION MUST BE VACATED AND A JUDGMENT OF ACQUITTAL ENTERED. ALTERNATIVELY, THIS COURT SHOULD SET ASIDE THE JURY'S GUILTY VERDICT AS BEING AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below)
A. The Judge Committed Plain Error in Not Acquitting [Defendant] of Robbery Sua Sponte.
B. The Trial Judge Should have Set Aside the Jury's Guilty Verdict as Against the Weight of the Evidence.
III. IN IMPOSING AN EIGHT-YEAR TERM OF IMPRISONMENT, WITH 85% PAROLE INELIGIBILITY, THE COURT CREATED A MANIFEST INJUSTICE. THE SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING.
Our review of the record convinces us that the arguments raised lack sufficient merit to warrant more than the brief discussion that follows. R. 2:11-3(e)(2).
The State's evidence, viewed in the most favorable light, was adequate to permit a reasonable juror to find each element of second-degree robbery beyond a reasonable doubt. See State v. Brown, 80 N.J. 587, 591 (1979); State v. Reyes, 50 N.J. 454, 459 (1967); see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed. 2d 560, 573 (1979); State v. Spivey, 179 N.J. 229, 236 (2004). Smith's testimony about defendant's attack and the evidence corroborating the theft and Smith's injuries was sufficient to prove that defendant used force and inflicted bodily injury in the course of committing a theft. N.J.S.A. 2C:15-1a(1); see N.J.S.A. 2C:11-1a (defining bodily injury); State v. Stull, 403 N.J. Super. 501 (App. Div. 2008).
Defendant did not object to the State's closing argument below, and the prosecutor's brief disparaging remarks, which were made in response to defendant's comparison of the investigation in this case with those conducted by actors in a television crime drama, did not exceed the bounds of permissible advocacy to a degree that raises any doubt about the fairness of defendant's trial. R. 2:10-2; see State v. Josephs, 174 N.J. 44, 120, 124-25 (2002); State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); State v. Pennington, 119 N.J. 547, 577 (1990). It was not improper for the State to urge the jurors to "assess the worth of the defense's case" and consider "interest and bias[, which] are always relevant." Josephs, supra, 174 N.J. at 127 (internal quotations omitted). And, in responding to the arguments raised by the defense, the prosecutor did not rely on anything other than inferences suggested by the evidence adduced at trial. State v. Munoz, 340 N.J. Super. 204, 218 (App. Div.), certif. denied, 169 N.J. 610 (2001).
Finally, given defendant's extensive criminal record, we cannot conclude that the trial court misidentified or erred in balancing the aggravating and mitigating factors or otherwise abused its discretion in imposing an eight-year term of incarceration for this second-degree robbery. State v. Natale, 184 N.J. 458, 489 (2005). The terms of parole ineligibility and parole supervision imposed were mandatory, N.J.S.A. 2C:43-7.2. Accordingly, there is no basis for this court to disturb that sentence. Natale, supra, 184 N.J. at 489.
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