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State v. Devello

June 29, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN L. DEVELLO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, No. I-07-01-209.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 27, 2010

Before Judges Wefing and LeWinn.

Defendant, John L. DeVello. was charged in a one-count indictment with first-degree robbery, N.J.S.A. 2C:15-1. A jury found him guilty. The trial court sentenced defendant to ten years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed his conviction and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On the morning of May 15, 2006, defendant, using his employer's van, drove to the Town and Country Shopping Center in Lakewood. Once there, he entered Elisa's Pastry Shop; the only other person in the store was the cashier, Maddalena Petrone. When she asked if she could help him, defendant responded by demanding the money in the cash register. She screamed and ran out the rear entrance. Defendant took the cash drawer from the register and ran to his van and drove away. Several people had seen defendant both enter and leave the shopping center in a white van. One witness told Detective Steven Wexler of the Lakewood Police Department that the van had the name "Armada" on its side. On the possibility that the van in fact had the name "Amana," the detective contacted a local authorized Amana dealership.

Defendant worked for that same company as a service technician and was provided a company van to use in connection with his work. His employer testified that defendant did not show up for work on May 15 and did not respond to telephone calls. His employer checked use of the credit card with which defendant had been provided to purchase fuel for the van and learned that several evidently unauthorized gas purchases had been made over the weekend.

Defendant appeared at work the following day and was terminated. As he was walking out, Detective Wexler approached him and identified himself. Defendant immediately responded, "You got me, I don't want any trouble." Defendant was placed under arrest. He waived his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), and provided a voluntary taped statement in which he admitted taking the cash drawer from the bakery's register. He said he needed the money to purchase drugs. This taped statement was played for the jury. Although not covered in the taped statement, Detective Wexler testified that defendant denied having a gun or making any gestures to simulate holding a gun. Detective Wexler also testified to that effect before the grand jury.

At trial, Ms. Petrone testified that defendant told her that he had a gun and that he held his hands in his sweatshirt pocket in such a manner that she believed he was holding a weapon. Defendant did not testify at trial but his attorney admitted his involvement in the incident, asserting, however, that his conduct constituted a theft, and not a first-degree robbery.

Defendant raises the following arguments on appeal:

POINT I.

THE FAILURE TO CHARGE THE JURY IN CONFORMITY WITH [HAMPTON] AND [KOCIOLEK] WAS ERROR AND DEFENDANT'S CASE SHOULD BE REVERSED. (Not Raised Below)

A) Hampton Charge Was Necessary

B) [Kociolek] Charge Was ...


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