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State v. Donofrio

May 12, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ELBIO DONOFRIO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-03-0286.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 3, 2009

Before Judges Wefing and LeWinn.

Tried to a jury along with co-defendant Stanley Jacques, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1. He was sentenced to a term of five years of incarceration with an eighty-five percent period of parole ineligibility. Defendant appeals his conviction and sentence. For the reasons that follow, we affirm.

The factual background may be summarized as follows. Carlos Gabriel-Baez testified that on December 21, 2005, at approximately 6:00 p.m., he was riding his bicycle in the area of Salem Avenue in Elizabeth. Three individuals approached him, hit him, emptied his pockets, ripped his earring from his ear, threw him to the ground, removed some of his clothing and kicked him in the ribs and head. The assault lasted "[a]bout five, ten minutes." Eventually, Baez was able to escape and ran home.

When Baez arrived at his residence, he encountered police officers who had one of the individuals in their patrol car. The officers "took [Baez] to see the other one that was arrested." Baez recognized these individuals as two of the three people who had assaulted him.

In court, Baez identified defendant and Jacques as those two individuals. When asked if he had ever seen the defendants before, Baez answered, "I was working on that same street and I constantly have been going around there and I had seen them before." On cross examination, Baez stated that he "used to work in a tire place in that street and [he] used to see them coming up and down that street."

Baez testified that he was "scared" during the assault because he didn't know "what [was] going to happen." He further stated that he had pain in his ribs and permanent scarring, as well as pain in the earlobe that had been ripped when his earring was taken.

Elizabeth Police Officer Paul Camarinha testified that, as a result of information he received at approximately 6:00 p.m. on the date in question, he responded to an area in Elizabeth where he encountered and detained defendant. The officer transported defendant to Baez's residence.

Elizabeth Police Officer James Szpond testified that he and his partner, Officer Luis Garcia, responded to the report of an incident at approximately 6:06 p.m. He observed three males who "began walking away from the area . . . very quickly[,]" when "it appeared that they noticed the squad car[.]"

Szpond and his partner exited their vehicle and detained one of the individuals, co-defendant Jacques, who was holding a set of keys in his hand. Szpond testified that, at the place where the three individuals were first spotted, the officers found "a bicycle and a pile of clothing."

Baez arrived at the scene and identified Jacques as one of the individuals who had assaulted him. He also identified the keys, bicycle and clothing as his property, which was then released to him.

Defendant testified on his own behalf. He acknowledged that he was on Salem Avenue in Elizabeth at approximately 6:00 p.m. on December 21, 2005. Defendant stated that he was "by [himself]" and that co-defendant Jacques was "[u]p the street." Defendant stated that he was on the street at that time selling drugs. Defendant then encountered Baez, whom he knew prior to that occasion.

When defendant was asked how he knew Baez, he responded, "Selling drugs . . . ." The prosecutor immediately objected. The judge excused the jury and conducted a voir dire. Defense counsel argued that defendant should be permitted to give this testimony to contradict Baez's testimony that he only knew defendant from seeing him around the neighborhood. Defense counsel argued: "This is what these guys do and this is how they all know each other and it . . . defuses the babe in the woods innocence the victim tends to portray, especially when you look at the confusing and conflicting testimony he's given in the inconsistent statements."

Defendant testified further during the voir dire that Baez had approached him earlier in the day on December 21, 2005, and had purchased two "bottles" of crack cocaine for twenty dollars.

Defendant testified that "[Baez] . . . came back around 6 o'clock on a bike[,]" to purchase more crack cocaine. Defendant "handed [the drugs] to him. [Baez] . . . grabbed [the drugs] out of [defendant's] hand and started taking [them] away on the bike." As Baez rode off, defendant "grabbed his hand, tried to get ...


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