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State v. Pero

July 17, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL A. PERO, III, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-12-2617.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 20, 2009

Argued before Judges Carchman, Sabatino and Simonelli.

On December 28, 2000, a grand jury indicted defendant for first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); second- degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree theft of movable property (automobile), N.J.S.A. 2C:20-3 (count four); third-degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5(d) (count five); and third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six). The charges stemmed from defendant assaulting his mother and forcing her to drive him to her bank to cash a check from her checking account for his use without her permission.

A jury acquitted defendant of kidnapping, first-degree armed robbery, and second-degree aggravated assault, and third-degree theft of movable property but convicted him of the lesser-included offenses of third-degree criminal restraint, N.J.S.A. 2C:13-2a, on count one; second-degree robbery, N.J.S.A. 2C:15-1, on count two; third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), on count three; and fourth-degree joyriding, N.J.S.A. 2C:20-10b, on count four. The jury also convicted defendant of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d, on count five; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, on count six.

The trial judge sentenced defendant to a ten-year term of imprisonment with a five-year period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the second-degree robbery charge; to a consecutive five-year term of imprisonment on the third-degree criminal restraint charge; to a concurrent five-year term of imprisonment on the third-degree aggravated assault charge; and to a concurrent eighteen-month term of imprisonment on the fourth-degree joyriding charge. The judge also merged the fourth-degree unlawful possession of a weapon charge with the third-degree possession of a weapon for an unlawful purpose charge and sentenced defendant to a concurrent five-year term of imprisonment. The judge also imposed the appropriate fines, assessments and penalties and suspended defendant's driver's license for twelve months.

On appeal, defendant raises the following contentions:

POINT I

THE 180-DAY PERIOD PURSUANT TO THE INTERSTATE AGREEMENT ON DETAINERS IN WHICH TO BRING DEFENDANT TO TRIAL FROM CONNECTICUT WAS TRIGGERED WHEN THE PROSECUTOR RECEIVED THE DEFENDANT'S REQUEST FOR FINAL DISPOSITION AND WAS NOT TOLLED FOR TECHNICAL DEFECTS IN THE APPLICATION THAT WERE NOT THE FAULT OF DEFENDANT, CONTRARY TO THE INTERLOCUTORY DECISION IN STATE V. PERO, 370 N.J. Super. 230 (2004).

POINT II

SINCE THE UNCOUNSELED DEFENDANT DID NOT WAIVE HIS RIGHT TO COUNSEL, DEFENDANT'S CONVICTIONS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

POINT III

SINCE THE ROLE OF STANDBY COUNSEL WAS WRONGLY CURTAILED AND DEFENDANT WAS TOLD THAT HE COULD NEVER RELINQUISH SELF REPRESENTATION, DEFENDANT'S CONVICTIONS MUST BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

POINT IV

THE OMISSION OF A JURY INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF FALSE IMPRISONMENT REQUIRES THE REVERSAL OF THE CRIMINAL RESTRAINT CHARGE. (Not Raised Below).

POINT V

THE PROSECUTOR'S REPEATED ARGUMENT IN SUMMATION THAT THE VICTIM WAS TELLING THE "TRUTH" ABOUT THE INCIDENT IN HER PRIOR STATEMENTS WAS IMPROPER VOUCHING FOR THE WITNESS AND INFRINGED UPON THE JURY'S SOLE FUNCTION TO DETERMINE CREDIBILITY, THEREFORE REQUIRING THE REVERSAL OF DEFENDANT'S CONVICTIONS. (Not Raised Below).

POINT VI

THE IMPOSITION OF TWO CONSECUTIVE AND MAXIMUM TERMS OF IMPRISONMENT FOR ROBBERY AND CRIMINAL RESTRAINT WAS EXCESSIVE.

In a supplemental brief, defendant raises the following contention:

POINT I

SINCE LAW OF THE CASE IS A DISCRETIONARY DOCTRINE, THIS COURT SHOULD CONSIDER THE IAD ISSUE SET FORTH IN POINT I OF DEFENDANT'S SUBSTANTIVE BRIEF TO THIS COURT REGARDING THE PRIOR DECISION IN STATE V. PERO, 370 N.J. SUPER. 370 (APP. DIV. 2004).

We affirm in all respects, except we vacate defendant's sentence and remand for re-sentencing.

We summarize the facts from the record. 9-1-1 operator Diane Goralski testified that on February 5, 2000, she received a call from the Ramsey post office that a woman had come in and said to call the police. The woman, later identified as defendant's mother, Eleanor Pero (Eleanor), told Goralski that she had "just jumped out of her car" because defendant, "made" her go to the bank to take money; that defendant beat her up; that defendant had a knife and threatened to kill her; and that defendant was "very dangerous."

Officer Angelo Lamanna of the Ramsey Police Department testified that he responded to the post office and found Eleanor crying and shaking, glasses were broken, she complained of double vision, she was "wincing in pain[,]" and she complained of pain in her back, side, ribs, and left elbow. The officer noticed redness on Eleanor's hands, neck and jaw. He called an ambulance, but Eleanor refused treatment. Instead, she went with Lamanna to police headquarters, where she gave a statement to Sergeant Robert Rapp.

In her statement, Eleanor said that she was fifty-eight years old; that she was sitting at her dining room table having breakfast when defendant "walked up to [her] and put his face directly in front of [her] face," then grabbed her robe; that defendant picked her up and threw her onto the floor; that while she was on the floor, defendant grabbed her three to four times, pulling her up and throwing her down again, and kicked her all over her body; that defendant "poked" her with a four- to five-inch kitchen knife, putting the knife on her ribs, in the center of her chest, and in one of her nostrils; that defendant "choked" her with his hands; that she was "dizzy" during the attack; that the assault lasted fifteen to twenty minutes; and that during the attack, defendant was "making delusional remarks," saying that he did not come back to live in the house with video bugs so that "they could watch him." Eleanor also explained that her son believed that the FBI wanted to "clone him for his DNA because he has super powers."

Eleanor also stated that defendant asked her how much cash she had on her. She told him how much she had and gave it to him. He then asked how much money she had in her checking account, and told her to get dressed because he wanted her to drive to the bank and cash a check. After Eleanor told defendant she had $2500 in the bank, he told her to write a check for $2000 and said, "I'm trying to think of a reason to let you live."

Eleanor continued in her statement that defendant escorted her to her bedroom, where he ripped the phone cord out of the wall; he left her alone to change; and he went downstairs to disable the kitchen phone as well.*fn1 After Eleanor finished dressing, she made out a check for $2000. Defendant told her to get into her car and drive. She indicated that she was "taken under duress[.]" Eleanor further stated that she drove to her bank's drive-through, cashed the check and handed defendant the $2000. A bank employee later verified this transaction. Eleanor said that she then left the bank, drove on Main Street, and pulled over and jumped from the car because "it was my best chance to free myself because there were a lot of people around and I wasn't going back to the house with him." She then ran into the post office. Defendant drove away in Eleanor's car without her permission. The car was subsequently recovered in Connecticut.

At the time of her statement, Eleanor complained of body aches, pain in her back, left elbow pain, and blurry vision. Rapp called an ambulance and, this time, Eleanor accepted medical treatment and went to the hospital. She declined to sign her statement because she was having a hard time concentrating and seeing.

Eleanor returned to the police station two days later and signed her statement. At that time, she also advised Rapp that the knife defendant used had penetrated her night gown and t-shirt, and that she had sustained two cuts to her lower left rib cage. Rapp noted that Eleanor had bruising on her left ear, chin, jaw, ring finger, left rear shoulder blade, and chest. She also had two scratches along the left side of her abdomen, which Rapp believed were consistent with a knife wound.

After the incident, defendant was arrested in Connecticut and incarcerated on unrelated charges. He filed a motion to dismiss the indictment in this case based on a violation of the Interstate Agreement on Detainers (IAD), which was implicated in transporting him from custody in Connecticut to New Jersey. The motion was denied. After granting leave to appeal, we affirmed. State v. Pero, 370 N.J. Super. 203 (App. Div. 2004).

Eleanor testified at a domestic violence trial before a Family Part judge on January 30, 2004, that defendant had put the knife blade in her nostril and poked her in the ribs and wrist, and that he made her made her write the check and go to the bank.

At trial, on direct examination by the State, Eleanor admitted that she wrote numerous letters to defendant, in which she asked him whether she should testify. She also wrote that she would do whatever defendant said, she would formulate a plan to deal with his case, and she would not testify and would do whatever was necessary to help him. She told defendant that she wanted "all of this to end" and wanted to "start over" with him. She offered to pay for a lawyer to represent him, but he declined. She also sent him money to pay for his trial exhibits. Defendant refused all of his mother's attempts to communicate with him.

Eleanor also attempted at trial to downplay the incident. However, she testified that on the morning of the incident, she was reading the paper when defendant ran up the stairs, threw her to the floor three or four times, kicked and choked her, and stood over her with a knife. She admitted that she may have told Rapp that defendant poked her in the cheat with the knife and inserted it in her nostril. Eleanor did not remember if defendant told her that he was trying to think of a reason to let her live. She admitted, however, that defendant cut the phone lines before they left the house.

On cross-examination, Eleanor testified that she agreed to write the check, that defendant did not force her out of the house or into her car, that he did not force her to give him the money, that she was not held against her will, that she agreed to let him take the car, and that she did not see a knife in the car. ...


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