On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-11-2606.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Parrillo and Yannotti.
Defendant Hajes K. Rabaia was tried before a jury and found guilty of second-degree robbery, contrary to N.J.S.A. 2C:15-1(a)(1). The court denied defendant's motion for a new trial and sentenced him to an extended term of fifteen years of incarceration with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction dated June 3, 2008. We affirm.
At the trial, the State presented evidence which established that on July 6, 2007, defendant and Naterlal Desia (Desia) were at a casino in Atlantic City. Desia was seated at a three-card poker table. Defendant was observing Desia play from a distance of about three feet. Desia won about $10,000. Desia and defendant left the gaming area and proceeded to the area where wagering chips are exchanged for cash. Defendant cashed out twenty-eight dollars. Desia cashed out $9800 and took the remaining $200 in chips.
Shortly thereafter, a casino security officer observed defendant and Desia "tussling on the floor" near the restroom. Desia, who was seventy-two years old at the time, was holding onto defendant's shirt while defendant tried to get away. Desia told the security officer that defendant had taken his money.
Several security officers arrived at the scene. One testified that he observed defendant trying to put on a torn shirt and that both men were breathing heavily. The officers took Desia to a security room on the fourth floor. An officer tried to escort defendant to the security room. According to the security officer, defendant pushed him and ran down a ramp. The officer said that defendant did not get very far because he tripped. Defendant was taken away. He was searched and found in possession of $10,000 in cash.
Desia testified that he did not know defendant. He said that he had not conversed with him, and did not place any bets for him. Desia stated that he did not want defendant to come to the restroom with him. He said that defendant entered the restroom, grabbed him from behind, took the money out of his pocket, and then hit him, causing his glasses to fall off. Desia grabbed defendant's shirt to stop him from taking his money.
Defendant told a different story. He said that he met Desia at the poker table. He stated that he needed money to settle a court case. Defendant stated that he gave Desia $200 in chips to play for him. Defendant said that when Desia won $4800 in one hand, he and Desia began to jump up and down in excitement. Defendant could not, however, explain why the security videotapes did not show this.
Defendant stated that he expected to get half of Desia's winnings. They went together to the cashier, and Desia allegedly told the cashier that $200 of his winnings belonged to defendant. Defendant and Desia went to the restroom, where they argued about splitting the money. According to defendant, Desia pushed him against the wall. At that point, the money fell out of Desia's pocket and his glasses fell to the floor.
Defendant grabbed the money. Desia started screaming. Defendant said that he and Desia agreed that defendant would keep the money in his pocket, each would get $200 to play, and they would play until defendant had to leave. Defendant stated that, when they left the restroom, there were ten people in the area. Defendant testified that Desia got nervous and said that he beat him and took his money. Defendant denied hitting or touching Desia.
Defendant also testified that, when the security officer arrived, he asked him for a nurse because he had injured his back in the altercation. Defendant said that the officer refused his request. He stated that he got mad at the officer but said that he was not "going to run away."
On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT ERRED IN FAILING TO CHARGE SIMPLE ASSAULT AS A LESSER OFFENSE OF ROBBERY WHERE ASSAULT WAS CLEARLY INDICATED IN THE RECORD AND THERE WAS A QUESTION AS TO WHETHER DEFENDANT WAS ENGAGED IN A THEFT AT THE TIME HE COMMITTED THAT OFFENSE. (Not Raised Below).
THE TRIAL COURT ERRED BY GIVING THE WRONG ALTERNATIVE OF THE MODEL CHARGE ON FLIGHT AND IMPERMISSIBLY EXPANDING THE SCOPE OF THE CHARGE TO INCLUDE "ATTEMPTED FLIGHT." (Partially Raised Below).
A. THE DEFENDANT'S TESTIMONY SUGGESTED AN EXPLANATION FOR HIS ALLEGED DEPARTURE FROM THE SCENE. THEREFORE, THE JUDGE SHOULD HAVE GIVEN THE ALTERNATIVE OF THE MODEL FLIGHT CHARGE THAT DEALS WITH SUCH A SCENARIO. (Partially Raised Below).
B. THE TRIAL COURT ERRED IN EXPANDING THE SCOPE OF THE MODEL JURY CHARGE ON FLIGHT TO INCLUDE "ATTEMPTED FLIGHT" AS EVIDENCE FROM WHICH THE ...