On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-02-0146.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Alvarez.
Tried to a jury on Cumberland County Indictment No. 06-02-0146, defendant Vincent Hawkins was convicted of second-degree burglary, N.J.S.A. 2C:18-2(a)(1), and third-degree theft, N.J.S.A. 2C:20-2(b)(2)(d), a lesser included to the original charge of robbery. The jury acquitted defendant of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). A count of fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a), was dismissed prior to trial. Defendant appeals the convictions as well as the sentences. We affirm.
Defendant's trial ended on August 25, 2006. On October 27, 2006, the State's application for discretionary extended term sentencing of defendant pursuant to N.J.S.A. 2C:44-3(a), was granted at the first sentencing hearing. Thereafter, the trial judge conducted a second sentencing hearing on March 9, 2007, to address State v. Pierce, 188 N.J. 155 (2006). Defendant was then resentenced on the second-degree burglary as an extended term offender to the same term of twenty years previously imposed, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The trial judge merged the third-degree theft into the second-degree burglary. Appropriate fines and penalties were imposed.
The victim, Pedro Santiago, testified at trial that at approximately 11:00 a.m. on September 23, 2005, he was in bed in his apartment when he heard his apartment door open. He went into the living room to find defendant stuffing his belongings into a bag. As Santiago approached, defendant, who was wearing white and grey socks on his hands, dropped the bag and pulled out an approximately three to four inch knife. The two men struggled, and the struggle continued into the street. When defendant heard someone say that the police had been called, he redoubled his efforts and fled. When his shirt came off, he was freed from Santiago's grip and ran.
When the dispatch went out regarding the incident, police who were gathered at an unrelated investigation site nearby almost immediately observed a man who matched defendant's description running toward them. Among others, Patrolman Deena Glover-Bertolini and Lieutenant Mark Ott pursued defendant in their separate patrol cars. Glover-Bertolini pulled up in front of defendant, who upon seeing her, said "Oh, s--t," and ran the other way. Lieutenant Ott also pulled up alongside defendant, got out of his car and drew his weapon, at which time defendant stopped running and dropped to his knees. Once arrested, police found a pocket knife, a screwdriver, and some socks in defendant's pockets.
Patrolman John Sloboda observed fresh pry marks on Santiago's door, the door latch and the knob. There were paint chips on the floor, directly below the door frame.
One of the State's witnesses was the victim's landlord, who observed the struggle between Santiago and defendant. She testified that defendant shouted out, "Does anybody here speak English?" and, "Can't you tell them I just wanted to feed my family?" She was the person who triggered defendant's flight by saying that she was calling police.
At trial, defendant testified that he was in Santiago's apartment solely to collect $80 he had loaned Santiago the prior day to buy drugs. He said that the victim would not pay him back in cash, but agreed that he could take some of the victim's belongings in lieu of the money. When he attempted to place items of value in the bag, however, Santiago assaulted him. Defendant claimed that the screwdriver actually belonged to Santiago, who threw it at him, striking the door and thereby causing the pry marks and chipping the paint. Defendant also claimed that he had been wearing two pairs of socks and had to remove one pair while running from the scene because his shoes were falling off. Defendant acknowledged three sanitized convictions on direct and was briefly examined about them on cross-examination as well.
On appeal, defendant raises the following points:
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S CROSS-EXAMINATION OF THE DEFENDANT ELICITING HIS PRIOR CRIMINAL RECORD AFTER IT HAD BEEN FULLY DISCLOSED BY DEFENSE ...