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State v. Cipriano

March 8, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NICHOLAS CIPRIANO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-09-1931.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 26, 2010

Before Judges Carchman and Parrillo.

Tried by a jury, defendant Nicholas Cipriano was convicted of the lesser-included offense of second-degree robbery, N.J.S.A. 2C:15-1 (Count 1), and third-degree terroristic threats, N.J.S.A. 2C:12-3 (Count 2).*fn1 On the State's motion, defendant was sentenced to a mandatory extended term, N.J.S.A. 2C:43-7.1b, of eighteen years subject to an eighty-five percent parole bar on Count 1 and a concurrent five-year term on Count 2. Defendant appeals, and we affirm.

According to the State's proofs, on September 20, 2005, Andrea Alexander was working as a teller at the Provident Bank branch in Freehold. At around 4:00 p.m., a man, later identified as defendant, walked into the bank, handed a note to Alexander, and told her to "read it carefully." The note read: "I have a gun. Give me your 20's, 50's and 100's. If you mess up, you're the first one shot." As she began handing money to defendant, he threatened her "Don't pull any funny [expletive], don't give me the bait money." After receiving the money, defendant started to flee, but turned around to retrieve the note.

As defendant was departing the bank, the bank manager, Allison Monge, came out of her office and was told of the robbery by Alexander, who also pushed the panic button to summon help and alert her fellow co-workers. Afraid he might return, Alexander then retreated to a back room, where she hid crying.

Monge meanwhile ran outside and followed the robber into a parking lot where she saw him leave in a late-model black Nissan Pathfinder. Monge then returned to the bank and called 9-1-1. A subsequent audit revealed that $2,222 had been stolen from the bank.

Monge provided police with a surveillance video of the bank interior, which captured defendant committing the robbery, as well as defendant's description: a white male, 5'7" to 5'9" with grayish-white hair in his mid- to late-fifties, wearing a tan "Members Only" jacket, black pants or jeans, and blue and white sneakers. Alexander's description was consistent. Monge then accompanied Detective Donald Swinarski of the Freehold Township Police Department to a nearby Burlington Coat Factory parking lot where Detective Troy Braxton, after given a description of the getaway car, located a vehicle that matched the description.*fn2

Upon peering through the windows of the Pathfinder, he saw a tan-colored "Members Only" jacket behind the driver's seat. Upon her arrival at the parking lot, Monge identified the vehicle as the one she believed defendant was operating when he fled the bank scene.

Braxton remained in the parking lot waiting for defendant to appear. Eventually he observed a man who fit the robber's description exit a store, look around the parking lot, walk toward the Pathfinder, and then change directions. Braxton exited his vehicle, drew his weapon and commanded defendant to put his hands up. With the defendant detained, Alexander was transported to the parking lot. As they neared the shopping plaza from the highway, Alexander spontaneously identified defendant, who was standing on the sidewalk, unrestrained, with the two plain-clothes officers. Monge was also returned to the scene in a separate police vehicle, and likewise identified defendant.

A search of defendant incident to his arrest uncovered $2,235.77 in his pants pocket. A subsequent search of the Pathfinder pursuant to warrant uncovered a tan jacket, a black valise with white lined paper, and a blue pen with the words "Commerce Bank" on it. A second search of the vehicle, with the owner's consent, revealed a small quantity of heroin and paraphernalia in the center console.

Although he did not testify, defendant disputed, through counsel, the armed feature of the robbery charge. The jury ultimately convicted defendant of second-degree robbery.

On appeal, defendant raises the following issues:

I. THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHEN IT VOUCHED FOR THE VICTIM'S CREDIBILITY, DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. ...


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