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State v. Rivera

May 27, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ERNESTO RIVERA A/K/A ERNESTO DEJESUS, ERNESTO R. DE JESUS, VICTOR RIVERA AND ERNEST R. RIVERA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-04-0443.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 16, 2010

Before Judges Carchman and Lihotz.

Defendant Ernesto Rivera was charged in Passaic County Indictment No. 07-04-0443 with second-degree robbery, N.J.S.A. 2C:15-1. After trial, a jury acquitted defendant of robbery but found him guilty of third-degree theft, N.J.S.A. 2C:20-3. The court sentenced defendant to a five-year term of imprisonment with a two and one-half year period of parole ineligibility and imposed applicable fines and penalties. Defendant appeals, challenging his conviction and sentence stating:

POINT I.

THE COURT ERRONEOUSLY ADMITTED CUSTODIAL STATEMENTS BY DEFENDANT WHICH WERE NOT PRECEDED BY MIRANDA WARNINGS AND WERE NOT THE PRODUCT OF INTERROGATION OR THE FUNCTIONAL EQUIVALENT OF INTERROGATION. (Partially raised below).

POINT II.

THE TRIAL COURT ERRONEOUSLY PERMITTED THE STATE TO ADDUCE EVIDENCE OF DEFENDANT'S PRIOR BAD ACTS.

POINT III.

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

In light of our review of the record, the arguments of the parties, and the applicable legal standards, we affirm.

These facts, taken from the trial record, support defendant's conviction. Edwardo Nek Zuniga Ramirez owned a small store on Main Street in Paterson. The store's front door was controlled by an automatic locking system so that Ramirez, while sitting at her desk, would press a button unlocking the door to allow someone entry. To exit, a person needed to push the door while the button was also pressed.

Ramirez was familiar with defendant and saw him in front of or in her store over the prior two to three years. At times, ...


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