On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-08-1097.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2009
Before Judges Carchman, R. B. Coleman and Simonelli.
Defendant Lewis Walker appeals his criminal conviction for robbery, burglary, attempted theft, and simple assault. After a careful review of the record, we find defendant's arguments unavailing. We affirm.
On the evening of November 26, 2004, defendant hit a parked car in a pizzeria parking lot and fled the scene in his car. He next entered a video store, only an eighth of a mile down the road, and frightened employees and patrons with his erratic behavior and profane language. When defendant exited the store, the employees summoned the police. In the video store parking lot, defendant entered the driver-side of an idling vehicle and attempted to put it in gear. An elderly passenger, Carmen Lazo, was in the passenger seat waiting for her son. Defendant began beating the woman and tried to take her pocketbook. The woman opened the car door and fell to the blacktop. Defendant exited the vehicle, walked to the passenger side, and continued to beat the woman where she fell. Upon exiting the video store, the woman's son, Alex Jurado, observed his mother being attacked and went to her aid. He, in turn, was attacked by defendant who then fled the scene. Defendant was subsequently apprehended by police after a lengthy pursuit. During his arrest, defendant admitted to assaulting the son. Also, a signal lamp missing from defendant's car matched a signal lamp found in the pizzeria parking lot.
Defendant was tried before Judge Jane B. Cantor and a jury. The jury returned a guilty verdict on robbery, N.J.S.A. 2C:15-1; burglary, N.J.S.A. 2C:18-2; attempted theft N.J.S.A. 2C:5-1, N.J.S.A. 2C:20-3, and simple assault, N.J.S.A. 2C:12-1a. When defendant was sentenced, the judge merged the burglary and simple assault charges into the robbery conviction, and imposed a term of imprisonment of eight years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. For the attempted theft conviction, defendant was sentenced to a five-year term to run concurrently with the sentence for the robbery count.
On appeal, defendant raises the following arguments:
POINT ONE: THE TRIAL COURT IMPROPERLY ADMITTED OTHER CRIME EVIDENCE OF THE MOTOR VEHICLE OFFENSES WHERE THE STATE DID NOT PROVE CLEARLY AND CONVINCINGLY THAT THE DEFENDANT COMMITTED THE VIOLATIONS AND WHERE THE COURT DID NOT INSTRUCT THE JURY ON THE PURPOSE FOR WHICH THE VIOLATIONS MAY BE USED.
POINT TWO: UNDER RULE 609 THE TRIAL COURT IS REQUIRED TO BALANCE THE INTERESTS OF THE PARTIES BEYOND AN EXAMINATION OF REMOTENESS AND SIMILARITY IN DETERMINING WHETHER TO ADMIT THE PRIOR CRIME EVIDENCE.
POINT THREE: THE TRIAL COURT'S CHARGE WAS MISLEADING WHERE THE JURY WAS CONFUSED ABOUT THE OBJECT THE STATE ACCUSED THE DEFENDANT OF ATTEMPTING TO UNLAWFULLY TAKE AND WHERE THE COURT, IN ATTEMPTING TO EXPLAIN THE CONFUSION, DID NOT EXPRESS A PLAIN AND CLEAR EXPOSITION OF THE ISSUE.
POINT FOUR: WHERE THE STATE DID NOT PRESENT ANY EVIDENCE THAT THE PERPETRATOR WHO ENTERED AN UNLOCKED SUV, WHOSE ENGINE WAS RUNNING, DID NOT SHIFT ITS GEARS AND EXITED THE VEHICLE WHEN ITS PASSENGER EXITED, IT FAILED TO SHOW THAT A SUBSTANTIAL STEP TO UNLAWFULLY TAKE THE SUV WAS PURPOSELY TAKEN.
POINT FIVE: THE JURY'S GUILTY VERDICT AS TO THE SECOND DEGREE BURGLARY SHOULD BE REVERSED WHERE IT WAS NOT CLEAR THAT THE ATTEMPT TO INFLICT BODILY INJURY OCCURRED IN THE COURSE OF STEALING THE SUV.
POINT SIX: THE PROSECUTOR'S SUMMATION WAS HIGHLY INFLAMMATORY WHERE HE ATTACKED WITHOUT REASON DEFENSE COUNSEL'S CHARACTER AND WHERE HIS COMMENTS ON ...