On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-03-0299.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2009
Before Judges Rodríguez and Lyons.
Defendant Ismael Nieves was convicted, following a jury trial, of second-degree robbery, N.J.S.A. 2C:15-1 and 2-6; fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10; and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a).*fn1 The same jury acquitted defendant of armed robbery, kidnapping and the lesser-included offenses of criminal restraint and false imprisonment. Defendant moved for a new trial pursuant to Rule 3:20-1, arguing that there was insufficient evidence to sustain the conviction for robbery. The judge denied this motion. The State moved for imposition of an extended term. The judge granted this motion and imposed an extended twelve-year term for the robbery conviction with a NERA parole disqualifier, a concurrent one-and-one-half-year term for the unlawful taking of a means of conveyance conviction, and a consecutive one-and-one-half-year term on the aggravated assault conviction. We affirm.
These are the salient facts. According to Bernable Leon Nique, at or about midnight on October 7, 2004, he arrived at Herman's Bar in Paterson. While there, he saw Johani Rodriguez, someone Nique had known in middle school. They talked briefly. When Nique was leaving the bar, Rodriguez asked him for a ride. Nique agreed and drove his car to the bar. Rodriguez was waiting with defendant and an older man, who was defendant's uncle. When Nique got there, defendant began acting aggressively towards him, saying "that [Nique] disrespected him." Defendant told Nique to get into the car and that he had a gun and would shoot him if he did not. Defendant also "forced" his uncle into the car as well. Defendant began to drive Nique's car down the street, apparently looking for someone. While they were driving around, defendant continued to threaten Nique, hitting him in the face a number of times. Defendant's uncle was in the back and kept telling Nique to keep quiet.
When defendant was unable to find whomever he had been looking for, he drove to a liquor store and asked if Nique had any money. When Nique stated he did not have any money, Rodriguez went in to buy some alcohol. While Rodriguez was in the liquor store, defendant exited the car and began urinating on the car. Defendant also began "smacking [Nique] around." After Rodriguez returned with the beer, defendant then drove the car to the Alexander Hamilton Projects in Paterson. Defendant avoided going through the front entrance where there was a police booth. Instead, he drove over the sidewalk to get to a back parking lot. Defendant removed Nique from the car and told Rodriguez to check the car for money and for "stuff" that they could take. Defendant again hit Nique in the face about four times and threatened to shoot Nique at least two more times. Defendant searched Nique and took $11 from him.
Defendant looked in the trunk for anything to take. He then tried to place Nique in the trunk. Nique struggled at this point and managed to grab a bottle of bleach from the trunk. Nique threw the bottle in defendant's face. Nique managed to get away from defendant and ran to the police booth in the front of the projects. He told Officer Colondres what had happened. Colondres noted that Nique was bleeding from his nose and that he smelled of bleach. Colondres called for backup. Meanwhile, defendant, Rodriguez and defendant's uncle left the car and went into building four and up to the defendant's apartment on the seventh floor.
Several units responded to Colondres' call. Upon arriving, Officer Anthony Deprospo spoke with Nique and got a description of defendant, Rodriguez and defendant's uncle. Deprospo and other officers made their way to the parking lot area where they met a woman who gave them information that led to defendant's apartment. When Deprospo reached the seventh floor, he immediately noted the heavy smell of bleach in the hallway. He found bleach-soaked clothes at one end of the hallway. Deprospo saw defendant, Rodriguez and defendant's uncle in an apartment with an open door. Defendant was washing the bleach off his face. Deprospo identified himself. Defendant tried to run down the hallway, shoving Deprospo into the wall as he went. After a brief struggle, Deprospo and other officers managed to handcuff defendant. The officers also arrested Rodriguez and defendant's uncle.
Inside the apartment, the officers found $11, which also smelled of bleach. The officers escorted the three down to the parking lot where Nique positively identified them. After the identification, the officers went back up to the apartment. They conducted a thorough search for the gun but did not find any firearms.
Two years later, Nique was incarcerated in Passaic County along with the defendant. During that time, defendant tried to apologize to Nique and asked him to sign a statement saying the events of October 7, 2004 had not happened as Nique had told the police. Nique signed a statement repudiating his prior version. Instead, Nique stated that he and Rodriguez had been in an argument that turned into a fight. Defendant tried to break it up. Nique had splashed defendant with the bleach. Defendant hit Nique in response. After being hit, Nique ran away and went to the police booth.
At some point, this statement was stamped by a notary public.
Following jury selection, defense counsel moved to sever the aggravated assault charge from the resisting arrest charge. The judge determined that the count was part of the same event and should not be severed.
In his opening statement, the prosecutor informed the jury that Rodriguez, one of the State's witnesses, had pled guilty to robbery by force for his role in assisting defendant. Rodriguez received a sentence recommendation as a result of his plea.
Nique testified that the statement he had signed in 2006 was untrue. He also testified that there was no notary public to stamp the statement present when he signed it. He did not prepare the statement, nor did he know who did. When asked why he had signed it, he indicated that he was afraid he would be hurt in jail by defendant or other prisoners at defendant's direction. On cross-examination, Nique stated that he never saw a gun.
Rodriguez testified for the State and admitted that he had entered a guilty plea to second-degree robbery and the State was going to recommend a five-year term with eighty-five percent served before parole. According to Rodriguez, part of the plea agreement was that he testify truthfully at defendant's trial.
According to Rodriguez's testimony, after Herman's Bar had closed and Nique had offered to give him a ride, defendant and his uncle got into the car as well, but there had been no threats made. Nique was driving at that point. The group had decided to go to the liquor store to get more alcohol. Rodriguez went in to get some beer, and when he came out he testified that Nique was in the back seat. Rodriguez thought Nique's presence in the backseat instead of driving was unusual and that Nique looked scared. According to Rodriguez, defendant then began "driving around, crazy, like he's drunk" and "punching [Nique] in his face." Rodriguez was surprised and told defendant to "chill." Defendant told Nique that he had a gun and would shoot him.
In instructing the jury, the judge said that "[e]vidence of Johani Rodriguez's plea of guilty may be used only in determining the credibility or believability of this witness' testimony." The judge also said that the jury should carefully scrutinize Rodriguez's testimony and make a determination as to whether he had an interest in the outcome of defendant's case.
The jury returned a verdict acquitting defendant of armed robbery, kidnapping, criminal restraint and false imprisonment, and finding defendant guilty of second-degree robbery, fourth-degree unlawful taking of a means of conveyance and fourth-degree aggravated assault.
On appeal, defendant contends:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO SEVER COUNT FOUR OF THE INDICTMENT CHARGING AGGRAVATED ASSAULT.
(a) The Distinguishing Nature Of The Crime Charged In Count Four And The Distinguishing Quality Of The Evidence Admitted ...