On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-04-0307.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Chambers.
Defendant Gary Jacques appeals from the judgment of conviction entered against him on August 15, 2006. He was convicted by a jury of second degree robbery, N.J.S.A. 2C:15-1, and third degree burglary, N.J.S.A. 2C:18-2.*fn1 The trial court sentenced him to an extended term of twelve years on the robbery charge, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and he was sentenced to a concurrent flat five years on the burglary charge. Additionally, defendant is subject to five years of parole supervision upon completion of his sentence of incarceration. For the reasons expressed below, we affirm the conviction and sentence. We remand in order that the judgment of conviction may be amended to reflect the proper degree of each crime.*fn2
A review of the record reveals the following pertinent facts. The victim of the crime, James Gerald, testified that at about noontime on November 5, 2004, he arrived with his two children at his residence in Trenton, where he lived with his girlfriend and children. He observed that a back window was broken, pushed the children back into his car, and walked into the house. There he saw a man come down the stairs. When the man pulled out a knife, Gerald did not confront him, and the man left the house.
Gerald gave chase, shouting to his neighbors that someone had broken into his house. At one point, he grabbed the man's jacket, which came off. He chased the man to an apartment building where a woman let the man in and locked the gate. The police arrived, and they eventually brought defendant out of the building. Gerald identified defendant as the man who had been in his house. Back at his residence, Gerald found no items missing other than approximately $245. However, he could not say that defendant took the money because other visitors had been in and out of the house. He also found jewelry and a jacket on the kitchen table which did not belong to him and indications that someone had gone through some papers and drawers.
Gerald testified that on two occasions while the case was pending, defendant offered him $500 not to testify, and that when being led out of the courtroom on the first day of trial testimony, defendant held up five fingers, indicating $500. Gerald's girlfriend also testified that, while defendant was being led away from the courtroom, she observed defendant "mouth" or whisper "500" to Gerald. However, the two sheriff's officers who escorted defendant past Gerald and his girlfriend testified that they made no observations of defendant communicating with Gerald or his girlfriend.
A neighbor in Gerald's neighborhood testified that on the day in question she observed two men fighting in the street and one man shouting that his house "had been broken into." She saw one man pull the other man's jacket off. She called the police and retrieved the jacket which had jewelry in a pocket. She took the jacket and jewelry to Gerald's house. In court, she identified defendant as one of the men she observed fighting in the street, but he was not the man shouting about a burglary.
The manager of the building where defendant was apprehended testified that defendant lived upstairs in the building. On the day in question, he observed a woman who was staying with defendant let defendant into the building, and they rushed up the stairs. A few seconds later, a man from the neighborhood began banging on the door, asking to be let in, and saying that he had been robbed. The manager also testified that he saw defendant hand the woman a white bag and told her to "get rid of this." The police then arrived, entered the building, and apprehended defendant in his room.
Defendant did not testify at his trial, but he presented the testimony of the sheriff's officers regarding the alleged $500 offer following the first day of trial. The parties stipulated that no fingerprints or palm prints were found at Gerald's premises matching defendant. Although Gerald and his neighbor did not observe that defendant had a tattoo, the parties stipulated that he had a tattoo on his neck and one on his arm.
On appeal, defendant raises the following issues:
The Admission of Highly Prejudicial Testimony by State Witness that Defendant offered $500.00 to witness violated N.J.R.E. 404(b) and Deprived Defendant of [h]is Federal and State Constitutional Rights to a Fair Trial and Due Process of Law U.S. ...