On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-04-0402.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2010
Before Judges Fisher, Sapp-Peterson and Espinosa.
Defendant, Stanford Yough, appeals his conviction for second-degree robbery, N.J.S.A. 2C:15-1(b), and the fifteen-year aggregate term of imprisonment imposed, along with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). We reverse.
On appeal, he raises the following points for our consideration:
THE PROSECUTOR'S INFLAMMATORY AND PREJUDICIAL CLOSING STATEMENT, COUPLED WITH THE TRIAL COURT'S FAILURE TO ISSUE A CURATIVE INSTRUCTION TO THE JURY, DEPRIVED THE DEFENDANT OF A FAIR TRIAL AND REQUIRES THE REVERSAL OF HIS CONVICTION (NOT RAISED BELOW).
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO GIVE A CURATIVE INSTRUCTION TO THE JURY AFTER ALVA'S TESTIMONY THAT HE HAD SEEN THE DEFENDANT ON SEVERAL PRIOR OCCASIONS IN PLACES THAT "DEALS IN DRUGS" (NOT RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S MOTION FOR A MISTRIAL, OR, ALTERNATIVELY, BY ISSUING A CURATIVE INSTRUCTION, AFTER ALVA TESTIFIED THAT THE DEFENDANT HAD THREATENED HIM AFTER THE ROBBERY (RAISED IN PART BELOW).
DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S REFERENCES TO DEFENDANT'S INCARCERATION IN PASSAIC COUNTY JAIL, HAVING HIS "BAIL YANKED" AND, BY IMPLICATION, DEFENDANT'S MUG SHOT, DURING TRIAL COUNSEL'S CROSS-EXAMINATION OF THE WITNESSES (NOT RAISED BELOW).
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO ISSUE A MISTRIAL SUA SPONTE AFTER NUMEROUS PREJUDICIAL REMARKS MADE BY DEFENSE COUNSEL (NOT RAISED BELOW).
DEFENDANT'S ROBBERY CONVICTION MUST BE REVERSED BECAUSE THE JURY'S GUILTY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION IN HOLDING THAT THE DEFENDANT'S 1991 AND 1992 NEW YORK ROBBERY CONVICTIONS WERE NOT REMOTE AND, THEREFORE, ADMISSIBLE FOR PURPOSES OF IMPEACHING THE DEFENDANT'S TESTIMONY AT TRIAL.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL ON THE GROUNDS OF THE PROSECUTION'S ALLEGED DISCOVERY VIOLATION, OR ALTERNATIVELY, GRANTING AN EVIDENTIARY HEARING ON WHETHER THE PROSECUTION FAILED TO DISCLOSE RELEVANT EVIDENCE.
THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING THE DEFENDANT AS A PERSISTENT OFFENDER AND IMPOSING AN EXTENDED TERM OF FIFTEEN YEARS IMPRISONMENT.
THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED.
ALL ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, MUST BE CONSIDERED IN SUPPORT OF THE INSTANT APPEAL.
Defendant also filed a pro se supplemental brief. It does not, however, comply with Rule 2:6-2(a)(1), which states that "the brief of the appellant shall contain... the point headings to be argued." The best we can glean from the pro se submission is that defendant contends the credibility of the State's witnesses was "questionable" and that he was "[un]aware of this incident and also that [he is] the wrong person."
In Point Three, defendant urges that the court abused its discretion when it denied defendant's motion for a mistrial after the victim, Cesar Alva, during trial, responded to a question from the prosecutor with an answer indicating he saw defendant after the robbery on other occasions, including one occasion when defendant pointed and growled at him and another occasion when defendant choked him. We agree.
The robbery occurred around 1:00 a.m. on October 10, 2005. Shortly thereafter, Alva told police that he had been robbed and beaten by three assailants. He described his main attacker as a "black male, about 5'11", 200 pounds, bald head, very light complexed [sic]... he was wearing a grey sweat suit, and in his 20's[.]" Police were unable to locate the suspects that evening. Approximately one week after the robbery, Alva provided police with a written statement recounting the events surrounding the robbery. In his statement, he indicated that one of his attackers was a person, later identified as defendant, that he had seen "on the street near West Broadway and Main Street" in the past. Shortly before the robbery, that person came into a restaurant while he was ordering food and asked him for money. He initially told the person "no," but later relented and gave the person fifty cents. When the individual left, Alva saw him standing with a group of men and pointing at him while talking to these men. In the statement, he also indicated that prior to the robbery, he had seen this individual "two or three or maybe more" times.
At trial, however, Alva testified that he had seen the person about ten to fifteen times and identified defendant in court as that person. In an effort to impeach Alva, defense counsel confronted him with his earlier statement:
Q: Do you remember being asked a question, how many times have you seen him? Do you remember being asked that question by the Detective, when you -- I'm not talking about --