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State of New Jersey v. Jose L. Gallardo

February 3, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE L. GALLARDO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0599.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 19, 2010

Before Judges Graves, Messano and Waugh.

The Union County grand jury charged defendant Jose Gallardo with first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e); second-degree eluding, N.J.S.A. 2C:29-2(b); and fourth-degree obstructing, N.J.S.A. 2C:29-1. Citing State v. Ortiz, 203 N.J. Super. 518 (App. Div.), certif. denied, 102 N.J. 335 (1985), and concluding that defendant "failed to proffer any evidence that police procedures were impermissibly suggestive," the Law Division judge managing the case pre-trial denied defendant's request for a Wade*fn1 hearing.

The case was tried before a different judge. At the close of the evidence, defendant's motion for a judgment of acquittal as to the obstruction count was granted. The remaining three counts were submitted to the jury, who convicted defendant of first-degree robbery and possession of an imitation firearm for an unlawful purpose, but acquitted him of eluding. The judge sentenced defendant to ten years in prison with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judgment of conviction, however, erroneously listed possession of an imitation firearm for an unlawful purpose and obstructing as the charges of which defendant was convicted.

Defendant raises the following issue on appeal:

POINT I

THE SHOW-UP IDENTIFICATION PROCEDURE CONDUCTED BY POLICE WAS IMPERMISSIBLY SUGGESTIVE AND CREATED A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION.

In a supplemental pro se brief, defendant raises the following points:

POINT ONE

DEFENSE COUNSEL'S FAILURE TO IMPEACH THE CREDIBILITY OF [THE] STATE'S TWO PRINCIPAL WITNESSES AGAINST THE DEFENDANT, ON THE GROUND THAT "BOTH" OF THEM HAD MADE PRIOR INCONSISTENT STATEMENTS, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL AND MANDATES A NEW TRIAL.

POINT TWO

TRIAL COUNSEL'S FAILURE TO IMPEACH "TESTIMONY" OF ONE OF TWO CRITICAL STATE'S WITNESSES AMOUNTED TO A DENIAL OF DUE PROCESS AND THE RIGHT OF A DEFENDANT TO CONFRONT HIS ACCUSERS, IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT AS GUARANTEED BY THE UNITED STATES CONSTITUTION.

POINT THREE

THE DEFENDANT WAS DENIED THE ABSOLUTE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL'S FAILURE TO DRAW THE JURORS['] ATTENTION TO GROSS DISCREPANCIES BETWEEN CRITICAL STATE WITNESSES ATUL PATEL AND KIM JONES, THE OMISSION OF WHICH ALLOWED THE JURY TO ASSUME CRITICAL MATERIAL FACTS WHICH HAD NOT OTHERWISE BEEN ESTABLISH[ED] THROUGH TESTIMONY OR EVIDENCE, THE CUMULATIVE EFFECT [OF] WHICH DENIED THE DEF[ENDANT] THE FAIR TRIAL AND "EFFECTIVE" ASSISTANCE OF COUNSEL AS HAS BEEN GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT FOUR

DEFENDANT'S CONVICTION FOR FIRST-DEGREE ROBBERY MUST BE REVERSED AS IT WAS NOT SUPPORTED BY THE EVIDENCE DEDUCED AT THE TRIAL; DEFENDANT MAINTAINS THAT THE RECORD EVIDENCES AN ABSOLUTE LACK OF PROOF THAT A THEFT HAD OCCUR[R]ED OR THAT A THEFT HAD EVEN BEEN ATTEMPTED, ENTITLING DEFENDANT TO A NEW TRIAL (AND/OR A VACATING OF THE JUDGMENT OF CONVICTION AND THE ENTRY OF A JUDGMENT OF ACQUITTAL FOR FIRST-DEGREE ROBBERY).

POINT FIVE

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY [HIS] ATTORNEY'S FAILURE TO CHALLENGE THE ADMISSIBILITY OF THE VICTIM'S OUT-OF-COURT IDENTIFICATION ABSENT THE STATE'S LAYING OF A FOUNDATION FOR ITS PERMISSIBLENESS.

POINT SIX

THE STATE COMMITTED REVERSIBLE ERROR BY FAILING TO PRESERVE THE VIDEO-TAPED FOOTAGE OF THE ALLEGED ROBBERY, CONTRAVENING THE HOLDING OF BRADY V. MARYLAND,*fn2 IN THAT THE FOOTAGE WAS MATERIAL TO BOTH GUILT AND/OR PUNISHMENT.

POINT SEVEN

COMMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM.

POINT EIGHT

THE COURT COMMITTED PLAIN ERROR BY DIRECTING THE VERDICT AGAINST THE DEFENDANT; SPECIFICALLY, BY REFERRING TO DEFENDANT AS THE PERPETRATOR WHILE ISSUING JURY ...


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