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State v. Vasquez-Volano

July 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FERNANDO C. VASQUEZ-VOLANO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-08-7766.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 2, 2009

Before Judges Axelrad and Espinosa.

Defendant, Fernando Vasquez-Volano, appeals from his sentence and convictions for armed robbery and weapons offenses. We affirm.

On May 26, 2007, a taxi driver, John Salvatore, responded to a call from a bartender at the Uptown Bar in Keyport to transport a patron to the Ken Garden Apartments in Aberdeen. Salvatore arrived at the bar at approximately 11:25 p.m. Salvatore saw defendant waiting outside the bar. Defendant entered the cab; Salvatore asked if he wanted to go to Ken Gardens Apartments and defendant responded, "yes." Salvatore also asked if defendant wanted to go to the house at the rear of the apartment complex and defendant again responded, "yes." There was no further conversation during the seven to ten minutes that it took to get to the apartments.

Upon arrival, Salvatore pulled in front of the house, put the car in park and turned on the interior light. He turned around to face defendant and told him that the fare was ten dollars. When defendant reached into his pocket, Salvatore turned back forward, believing that he was reaching for money to pay him. Instead, Salvatore saw a knife coming at him from his right side. Salvatore grabbed defendant by his forearm and threw him into the back seat of the vehicle. He received a minor cut on his chin in the process. Salvatore testified that he thought defendant was going to slice his throat. He unfastened his seatbelt, kicked open the door so hard that he bent the fender on the car, and got out.

Defendant came out of the car on the driver's side and took a swipe at Salvatore with the knife. Salvatore grabbed defendant and threw him on the ground. Defendant continued to swing the knife at Salvatore as they wrestled on the ground. Salvatore testified that he was terrified, thinking that defendant was going to stab him.

Salvatore was yelling for help when a white SUV, driven by Laverne Finley, pulled up. At this point, Salvatore was holding defendant, with defendant's arm wrapped around his neck. Salvatore testified that he brought defendant over to the car. He told Finley, "this guy just tried to cut slice my throat," and asked him to call the police.

Finley called 9-1-1. Defendant tried to squirm away from Salvatore, who threw him on the ground, kneeled on top of him and grabbed his throat. Salvatore testified that he was panicked, almost in shock at what had occurred. As he was holding defendant down, he told Finley that he was just giving defendant a ride; that defendant tried to slit his throat and that this could have happened to any of the people he worked with, including women who worked as drivers.

Salvatore testified that the police arrived within minutes. Officer Mary Johnston of the Aberdeen Police Department testified that, upon arrival, she saw a white male on top of another male on the ground. Uncertain about the circumstances, she asked the white male to identify himself. Salvatore responded that he was the cab driver and the man he was holding down tried to slit his throat. When she asked defendant to identify himself, he only stared and smiled. She asked him if he spoke English but received no reply. Officer Johnston handcuffed defendant and patted him down but found no knife. She testified that Salvatore was extremely excited, his voice was high pitched and his arms were flailing about. He told her that defendant had thrown the knife away. Officer Johnston searched the area for the knife and located it on the grass.

Defendant was indicted for armed robbery, N.J.S.A. 2C:15-1, (count one); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). Following a jury trial, he was convicted on all counts. The trial court merged counts two and three into count one and imposed a custodial term of twelve years with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, as well as appropriate fines and penalties. Defendant later filed a motion for reduction of sentence pursuant to Rule 3:21-10(b)(3), which was denied.

In this appeal, defendant presents the ...


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