On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-06-0371.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2011 - Decided Before Judges Sapp-Peterson and Simonelli.
Following a jury trial, defendant Luis Figueroa was convicted of second-degree robbery, N.J.S.A. 2C:15-1. The trial judge subsequently found defendant guilty of resisting arrest, N.J.S.A. 2C:29-1a(1), a disorderly persons offense. The charges stemmed from defendant's fight with a Stop & Shop store manager while attempting to leave the store without paying for merchandise. The judge sentenced defendant to an eight-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery charge, and to a concurrent six months in the county jail on the resisting arrest charge. We affirm defendant's conviction and sentence, reverse the imposition of a $200 Violent Crimes Compensation Board (VCCB) assessment for the disorderly persons conviction, and remand for the entry of a corrected judgment of conviction to reduce the VCCB assessment to $50.
At approximately 9:00 p.m. on May 5, 2008, Stop & Shop store manager Michael Chen saw defendant place a package of batteries in his jacket pocket. Defendant also had a shopping basket containing several packages of batteries. Defendant walked through a self-checkout lane without paying for the batteries. Defendant attempted to run from the store after Chen confronted him about his failure to pay for the merchandise. Chen grabbed defendant and a fight ensued. Defendant kicked Chen three times in the groin area, causing Chen pain. During the fight, approximately twelve to thirteen packages of batteries, valued at $120, fell to the floor from the shopping basket and defendant's jacket pocket. Defendant then fled and was apprehended by the police outside the store. The incident was captured on videotape, which was played to the jury.
Police Officer Scott Anderle of the Watchung Police Department responded to the Stop & Shop. He saw defendant exit the store and ordered him to stop. Defendant stopped, faced the officer, turned and briskly walked away, and ignored several more commands to stop. Anderle then grabbed defendant's right hand, placed him against a wall, and attempted to handcuff him; however, defendant resisted. Defendant continued resisting after the officer took him to the ground to handcuff him.
It is against these facts that defendant raises the following contentions for our consideration:
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN HE FAILED TO CHARGE THE JURY ON "ATTEMPT" BECAUSE AN ATTEMPTED THEFT FORMED THE BASIS FOR THE ROBBERY CHARGE POINT II
THE JUDGE'S CHARGE REGARDING LESSER-INCLUDED OFFENSES IMPROPERLY SUGGESTED THAT SUCH OFFENSES WERE NOT OF EQUAL WEIGHT TO THE ROBBERY CHARGED IN THE INDICTMENT POINT III
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT CREATED THE IMPRESSION THAT HE HAD AN OBLIGATION TO
TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT POINT IV
BECAUSE THIS ROBBERY WAS LESS SERIOUS THAN OTHERS IN ITS CLASS, THE COURT ERRED IN IMPOSING A SENTENCE IN EXCESS OF THE MIDPOINT OF THE SENTENCING RANGE POINT V
THE VIOLENT CRIMES COMPENSATION BOARD PENALTY ON THE DISORDERLY PERSONS OFFENSE MUST BE REDUCED TO $50.00 Defendant's contentions in Points I, II and III, raised for the first time on appeal, lack sufficient merit to warrant discussion in a written ...