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State v. Tiberio

January 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DINO TIBERIO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-01-0182.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 4, 2009

Before Judges Messano and LeWinn.

Defendant Dino Tiberio appeals from the judgment of conviction that followed a jury trial at which he was found guilty of second-degree robbery, N.J.S.A. 2C:15-1. He raises the following issues for our consideration on appeal:

THE COURT ERRED IN ADMITTING COBA'S TESTIMONY THAT THE TYPES OF ITEMS DEFENDANT HAD IN HIS SHOPPING BASKET ARE COMMONLY STOLEN TO BE SOLD ON THE BLACK MARKET.

POINT II

THE COURT ERRED IN INSTRUCTING THE JURY, OVER OBJECTION, AS TO THE PROVISIONS OF THE CIVIL LIABILITY STATUTE.

POINT III

THE TWO TESTIMONIAL REFERENCES TO DEFENDANT'S BEING REPRESENTED BY THE OFFICE OF THE PUBLIC DEFENDER, IN A CASE WHERE HE WAS BEING CHARGED WITH THEFT, DEPRIVED HIM OF A FAIR TRIAL.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

The State's primary witness at trial was Pathmark "store detective" Mario Coba. He had been employed in that capacity for eight years. On July 9, 2006, Coba was working in the Elmwood Park store. He described the camera system in the store's security office, "Store Vision," that permitted video surveillance of the premises.

At approximately 8:00 p.m., utilizing the camera system, Coba "noticed a male subject[,]" later identified as defendant, acting suspiciously in one of the aisles. He was "removing a quantity of Tylenol and Advils, just cold medicine,... one by one... into [his] basket...." Coba saw defendant look around "mak[ing] sure nobody was watching him." Coba instinctively believed the man "was going right through the doors" without paying for the items.

Coba left the security office, alerted a fellow employee, Louis Sanchez, that he might need assistance, and stopped defendant in the vestibule of the store immediately before the exit door leading to an external sidewalk. He identified himself, displayed his badge, and asked defendant to return to the security office with him because defendant had not paid for the items. Coba "didn't... get to finish th[e] statement," when defendant "gave [him] a stiff arm[,]" dropped the basket, and attempted to flee. However, defendant "went through the wrong door," and Coba was able to apprehend him. Defendant continued to "kick[] and punch[]... and... flail[]" in an attempt to free himself. Ultimately, defendant "calmed down[,]" and told Coba, "I quit."

Coba testified that defendant received a laceration to his forehead in the struggle, and that the sunglasses he had been wearing fell off his face. Defendant had a "black eye" ...


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