On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-01-0207.
NOT FOR PUBLICATION WITHOUT
THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2010 - Decided Before Judges Lihotz and J. N. Harris.
On January 29, 2008, an Atlantic County grand jury issued Indictment No. 08-01-0207 charging defendant Antonio J. Pratts with first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); third-degree theft, N.J.S.A. 2C:20-3 (count two); second-degree burglary, N.J.S.A. 2C:18-2 (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four); third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d (count five); and third-degree terroristic threats, N.J.S.A. 2C:12-3b (count six). Following a jury trial, defendant was convicted of terroristic threats (count six) and criminal trespass, a lesser included offense to the burglary offense (count three). The jury acquitted defendant on all other counts.
The court granted the State's motion and imposed an extended term sentence of ten years on count six, with a five-year parole ineligibility period and a concurrent eighteen-month term with a nine-month parole ineligibility period on count three. Applicable fines and assessments were imposed.
Defendant appeals from his conviction and the sentence imposed by the court, arguing:
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A VERDICT OF GUILTY AS TO TERRORISTIC THREATS (Not raised below).
THE TRIAL COURT ERRED BY NOT SUA SPONTE
CHARGING HARASSMENT AS A LESSER-INCLUDED OFFENSE OF TERRORISTIC THREATS. (Not raised below).
TESTIMONY WHICH IMPUTED A CRIMINAL DISPOSITION TO DEFENDANT WAS ADMITTED ERRONEOUSLY, AND THE COURT IMPROPERLY FAILED TO GIVE A CAUTIONARY INSTRUCTION REGARDING THIS TESTIMONY. (Partially raised below).
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
Following our review of these arguments in light of the record and applicable law, we affirm defendant's conviction and sentence.
The facts are taken from the trial testimony presented by the witnesses. On December 20, 2007, Frank Brunetti was in his Absecon apartment around 4:00 P.M. with Melissa Fifth, a prostitute. Brunetti admitted he had engaged Fifth's services in the past, however, on this evening, the two were viewing his recent vacation photographs. Before Fifth went to Brunetti's home, she had called him stating she needed money. Brunetti gave her forty dollars.
While Brunetti and Fifth were looking at his pictures, someone knocked on his apartment door. Brunetti opened the door, expecting a real estate agent who had made arrangements to show the apartment. Instead of greeting the agent, he was confronted by defendant. Defendant "pushed in the door and started rambling on about giving him money." Defendant then pushed Brunetti against the refrigerator, pulled out a lock-blade knife and demanded money. Fifth ran out of the apartment. Brunetti handed defendant $123. Defendant grabbed a pack of Newport 100 cigarettes and a Bic lighter he saw on the bed and began to leave. Before exiting, defendant, with the knife in his hand, threatened to kill Brunetti if he called the police, warning that he had "been to prison before and . . . it didn't bother him being there."
Terah Naumchik, a real estate agent who was showing the property, was headed toward Brunetti's apartment when she observed a man, later identified as defendant, wearing a dark gray sweat-suit and a yellow backpack sitting on the stoop outside of the apartment. Unable to get into the apartment, Naumchik took her client to the front of the building. Thereafter, Naumchik saw defendant peddling a bicycle at a high rate of speed, heading away from the building toward the train station. At nearly the same time, Naumchik encountered Brunetti, who approached from the rear of the building. Brunetti "was very agitated" and stated he been robbed and "this guy pulled a knife on [him]."
Brunetti reported to a 911 operator a man wearing "a gray hoodie with a yellow backpack robbed [him] at [his] house and he was heading towards the Absecon train station." Within two minutes, Officer Micah O'Hara arrived to interview Naumchik and Brunetti. Both witnesses described the suspect as "a Hispanic male, [of] short stature, wearing a black or dark gray outfit, jeans  and a yellow and black bag. He was wearing prescription eyeglasses. He was last seen on Station Avenue heading towards the train station on a bicycle." Officer O'Hara radioed this information to other police units.
As the police arrived at the train station, a man fitting the description of the suspect was seen boarding a train. With the help of passengers, the police located defendant and Fifth, who were seated in separate cars. Also, defendant's bicycle was located in a storage area in one of the cars. Detective Robert Ponzetti detained defendant and patted him down; no weapons, money, or cigarettes were found. Detective Ponzetti noticed defendant wore a custodial parole GPS bracelet on his ankle and told the arresting officer there was "no way that [he] would be involved in doing any criminal activity with a satellite that follows [him] around wherever [he goes]."
Police officers searched a trash can next to the train station ticket machine, where they found a black leather jacket, a blue denim baseball cap, and a pair of eyeglasses. Train station staff turned over a backpack found on the train to police. Inside were a screwdriver, a pie knife, and a can of malt liquor. Police took defendant to the scene of the crime, where Brunetti identified him stating, "Yes, that's him. I remember his teeth."
Sergeant Robert Ketschek transported defendant to the police station. After transport was completed, Sgt. Ketschek searched the back seat of his patrol car and found a black Bic lighter. While processing defendant, Officer O'Hara found a pack of Newport 100 cigarettes. Defendant did not have a knife that matched the witness's description, as neither the State nor Brunetti alleged that the pie knife recovered in the backpack was the knife in the robbery. During processing, defendant told Officer O'Hara, "Look, I just went in there and I shoved the guy a few times. That's all that happened. I just wanted to get my girlfriend back."
Omar Pardo testified at the request of the defense. Pardo was a long-time friend of defendant and related a conversation he had with Fifth at a Dunkin' Donuts in late December 2007. According to ...