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State v. Vargez

September 23, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANGEL VARGEZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-04-1072.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2010

Before Judges Wefing, Baxter and Koblitz.

Following a trial by jury, defendant Angel Vargez was convicted of one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7, for which the judge sentenced him to a five-year term of imprisonment, subject to a two and one-half year parole ineligibility term. On appeal, defendant raises the following claims:

I. THE FAILURE OF THE COURT TO EXCUSE JUROR #5 PRIOR TO DELIBERATIONS DENIED DEFENDANT A FAIR TRIAL.

II. THE COURT'S FAILURE TO GRANT A MISTRIAL FOLLOWING THE TESTIMONY REGARDING DEFENDANT'S POST-ARREST SILENCE WAS ERROR.

III. IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO PERMIT A LAW ENFORCEMENT FACT WITNESS TO PROVIDE OPINION TESTIMONY REGARDING THE ULTIMATE ISSUE IN THE CASE AND TO NEGLECT TO INSTRUCT JURORS REGARDING THEIR EVALUATION OF THIS TESTIMONY. (Not raised below)

IV. THE PROSECUTOR'S QUESTIONING OF MR. LOPEZ REGARDING HIS FAILURE TO GIVE THE POLICE EXCULPATORY INFORMATION ABOUT DEFENDANT EXCEEDED THE PERMISSIBLE SCOPE ALLOWED BY STATE V. SILVA.

V. THE STATE VIOLATED THE RULES OF DISCOVERY WITH REGARDS TO LATE DISCLOSURE OF CERTAIN EVIDENCE UTILIZED AT TRIAL. (Not raised below)

VI. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. (Not raised below)

A. Failure to Object to Certain Evidence

B. Eliciting Prejudicial Testimony on

Cross-examination

C. Failure to Request the Dismissal of a Juror

D. Failure to Object to the State's Cross-examination of the Defense Witness

VII. THE SENTENCE IMPOSED UPON THE DEFENDANT OF 5 YEARS WITH 2 1/2 YEARS OF PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not raised below)

VIII. THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below)

With the exception of the claim defendant advances in Point VI, which we defer for post-conviction review, see State v. Preciose, 129 N.J. 451, 462 (1992), we reject the arguments raised and affirm defendant's conviction and sentence.*fn1

I.

On January 18, 2006, Detectives Francisco Quevas and Tony Brown of the Newark Police Department Auto Squad were on patrol when they observed a silver Audi, in which neither the driver nor either of the two passengers was wearing a seatbelt. When the detectives effectuated a motor vehicle stop, the car pulled over to the curb and the three occupants exited the vehicle. When the detectives asked defendant, who was the driver, to produce his driver's license, the vehicle's registration and proof of insurance, he was unable to do so. The detectives observed a damaged ignition, a screwdriver lying in the center console and damage to the driver's side door. No keys were found in the vehicle. Although the Audi had not been reported stolen, the police contacted the vehicle's owner, Judith Wagner, who reported that she had left her car parked outside her place of employment and had given no one permission to operate it.

On the first day of trial, prior to jury selection, defendant objected to the late production of certain pieces of evidence by the State, namely the certificate of title, the motor vehicle offense summonses issued to defendant, the plea form for co-defendant Frank Meglio and a copy of the car rental agreement. He requested that the documents be excluded from ...


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