On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-1180.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Messano.
Defendant Angel Martinez appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree conspiracy to commit robbery and carjacking, N.J.S.A. 2C:5-2, 2C:15-1 and 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1(b); first-degree carjacking, N.J.S.A. 2C:15-2(b); and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). After merging the conspiracy and robbery convictions, the judge sentenced defendant to seventeen years in prison on that count, twenty-one years in prison on the carjacking charge, and eight years in prison on the assault charge. He imposed an 85% period of parole ineligibility as to each sentence pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and ordered the sentences to run concurrently.
Defendant raises the following issues on appeal:
BECAUSE THE PHOTOGRAPHIC ARRAY PROCEDURE USED WITH THE VICTIM CREATED AN UNRELIABLE RESULT, THE COURT ERRED IN FAILING TO EXCLUDE THAT IDENTIFICATION AS WELL AS THE VICTIM'S SUBSEQUENT IN-COURT IDENTIFICATION OF DEFENDANT.
THE COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO THE DEFENSE OF "AFTERTHOUGHT THEFT" REGARDING THE CARJACKING CHARGE. IT ALSO ERRED IN DENYING THE DEFENSE MOTIONS FOR JUDGMENT OF ACQUITTAL AND FOR A NEW TRIAL AS TO THAT CHARGE, BECAUSE THE STATE HAD FAILED TO PROVE THAT THE ROBBERY OCCURRED "IN THE COURSE OF" THE THEFT OF THE CAR. (Partly Raised Below)
DEFENDANT WAS IRREPARABLY PREJUDICED BY THE STATE'S FAILURE TO PROVIDE HIM WITH ADEQUATE NOTICE THAT THE VICTIM CLAIMED TO HAVE RECOGNIZED HIM AS A REGULAR CUSTOMER OF THE CAB COMPANY FOR WHICH THE VICTIM DROVE.
THE AGGRAVATED ASSAULT CONVICTION MUST BE MERGED INTO THE ROBBERY CONVICTION. (Not Raised Below)
In a supplementary pro se brief, defendant raises the following points:
THE PROSECUTOR'S IMPROPER COMMENTS DURING SUMMATION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMEND. XIV, N.J. CONST. (1947) ART. I, PARS, 1, 9, & 10.
THE TRIAL COURT ERRED IN PERMITTING ONLY A PARTIAL READ BACK OF THE TESTIMONY OF A CRUCIAL WITNESS. (Not Raised Below)
We have considered these arguments in light of the record and applicable legal standards. We agree with defendant that his conviction for aggravated assault must merge into the robbery conviction, and therefore remand the matter to the Law Division for re-sentencing. In all other respects, we affirm.
On August 29, 2003, at approximately 11:30 p.m., taxi driver Giovanny Mino was dispatched to pick up passengers on Bloomfield Avenue in Newark. Mino picked up two men and drove them to James and Nesbit Streets, as requested. When the cab arrived at its destination, one of the men told Mino to "park on the right side of the street." Given the neighborhood, Mino became apprehensive and turned on the inside light in the cab. The man sitting on the passenger ...