On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-01-0005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011
Before Judges Fisher, Sapp-Peterson and Fasciale.
Defendant was tried and convicted by a jury of numerous offenses regarding his robbery of $78 from a taxi cab driver in Paterson. We conclude that the kidnapping conviction cannot stand because defendant compelled the victim to drive only a short distance after the theft was committed. We otherwise affirm the judgment under review.
The record reveals that on January 14, 2005, at approximately 8:30 p.m., cab driver Murul Chowdhury was stopped at a red light at River and Lafayette Streets when defendant jumped into the front seat and demanded a ride to Broadway. Chowdhury said he was en route to picking up another customer, but defendant insisted on a ride, and then pointed a gun at Chowdhury and demanded all his money. Chowdhury gave defendant $65 in collected fares and another $13 from his wallet. Chowdhury was directed to drive on, and proceeded a short distance before turning left on Broadway; defendant exited a few blocks later, near the intersection of Broadway and Carroll Street. By his description, Chowdhury drove a mere twenty feet when he saw a police vehicle in his rearview mirror. He flagged down the vehicle, which was driven by Sergeant Angel Perales, and pointed out defendant as the man who robbed him. Sergeant Perales had seen defendant exit Chowdhury's cab, radioed for help, and pursued defendant on foot. When defendant saw Sergeant Perales, he started running toward a nearby park. Sergeant Perales chased defendant into the park; Chowdhury followed. While running, Chowdhury told the officer that defendant had a gun.
Officer Wayne Bizzaro and another police officer who had responded to the call wrestled defendant to the ground and handcuffed him. Chowdhury then identified defendant as the person who robbed him, and Officer Bizzaro frisked defendant and found $78 but no weapon. A search of the park did not uncover a gun.
At police headquarters, defendant was placed in an interview room. While alone with defendant, Officer Bizzaro uncuffed him in order to conduct a thorough search. He told defendant to place his hands on the wall in front of him and searched defendant's torso, neck, arms, underneath his arms, groin area, both legs and around his waistband. Officer Bizzaro claimed to feel something "hard" and "square" in defendant's groin area, but defendant pushed off the wall and turned toward Bizarro; the two began to struggle and throw punches. Another officer returned to the interview room and assisted in handcuffing defendant again. Officer Bizzaro then opened defendant's pants and uncovered a gun in defendant's groin area.*fn1
A later search of defendant's jacket uncovered the gun's slide.
In April 2005, a Passaic County grand jury returned an indictment, charging defendant with: three counts of first-degree robbery, N.J.S.A. 2C:15-1; three counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); three counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7; one count of second-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) or N.J.S.A. 2C:13-1(b)(2); one count of third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a); and one count of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3). In October 2005, the prosecutor's office learned of Bizzaro's false police report and the fact that he falsely testified before the grand jury. Consequently, this indictment was dismissed, and the trial judge ordered that copies of all internal affairs reports and investigations be provided to defense counsel and that the assistant prosecutor have no further involvement in the case.
On January 1, 2007, a Passaic County grand jury returned a superseding indictment, which contained the same charges as the first. Defendant moved for dismissal based on the perjury and official misconduct of a law enforcement officer; defendant also sought the recusal of the Passaic County prosecutor's office. The trial judge denied these motions and also denied a motion to suppress the slide of the gun found on defendant's person. The judge additionally severed several of the charges in the indictment, resulting in a trial that consisted only of those charged offenses that related to the incident concerning Murul Chowdhury.
After a five-day trial, on August 9, 2007, the jury convicted defendant of first-degree robbery; fourth-degree aggravated assault; second-degree possession of a weapon for an unlawful purpose; third-degree unlawful possession of a weapon; second-degree kidnapping; third-degree aggravated assault of a law enforcement officer, although the jury did not find that the victim suffered bodily injury; and third-degree resisting arrest. The jury then deliberated and found defendant guilty of certain persons not to have weapons. The prosecutor thereafter dismissed the remaining counts of the indictment.
Defendant unsuccessfully moved for a new trial, following which the judge granted the prosecutor's motion for an extended term, pursuant to N.J.S.A. 2C:44-3(a). After merging the aggravated assault conviction with the conviction for possession of a weapon for an unlawful purpose conviction, the judge sentenced defendant to a thirty-year prison term on the robbery conviction, with an eighty-five percent parole ineligibility. The judge also imposed lesser concurrent terms on the remaining convictions.*fn2
Defendant appealed, presenting the following arguments for our consideration:
I. THE COURT ERRED IN FAILING TO GRANT A MISTRIAL WHEN THE PROSECUTOR TOLD THE JURY THAT AN ACQUITTAL WOULD AID DEFENDANT IN HIS CIVIL SUIT IN WHICH HE WAS ATTEMPTING TO RECOVER A MILLION DOLLARS FROM THE ARRESTING OFFICER AND BANKRUPT HIM "FOR THE REST OF HIS LIFE."
II. THE KIDNAPPING CONVICTION MUST BE VACATED AND A JUDGMENT OF ACQUITTAL ENTERED BECAUSE THE STATE FAILED TO INTRODUCE EVIDENCE OF EITHER OF THE ALTERNATIVE ELEMENTS OF THE OFFENSE -- THAT DEFENDANT MOVED THE VICTIM A SUBSTANTIAL DISTANCE OR CONFINED HIM FOR A SUBSTANTIAL PERIOD (Not Raised Below).
III. THE CONVICTIONS FOR ROBBERY AND KIDNAPPING SHOULD BE REVERSED BECAUSE THE INSTRUCTIONS DISPARAGED THE SIGNIFICANCE OF THE LESSER OFFENSES
IV. THE COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE STATE FAILED TO INFORM DEFENDANT BEFORE TRIAL THAT OFFICER PERALES WOULD TESTIFY THAT HE SAW DEFENDANT EXIT THE TAXI MOMENTS AFTER THE ROBBERY.
V. THE COURT ERRED IN RULING THAT THE STATE COULD IMPEACH DEFENDANT'S CREDIBILITY WITH STALE CONVICTIONS THAT WERE 14, 19, AND ...