On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-04-0796.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2010
Before Judges Sapp-Peterson and Simonelli.
In a four-count indictment, a grand jury indicted defendant for first-degree robbery, N.J.S.A. 2C:15-1 (Count One); third-degree possession of a weapon, a baseball bat, for an unlawful purpose, N.J.S.A. 2C:39-4 (Count Two); fourth-degree possession of a baseball bat under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5(d) (Count Three); and, along with Jasmine Rios (Rios), first-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2. The jury found defendant guilty of first-degree robbery, conspiracy to commit robbery, and the two weapons offenses. At sentencing, the court imposed an aggregate fifteen-year sentence with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed a three-year consecutive sentence as a result of a violation of probation on an unrelated narcotics indictment to which defendant had pled guilty prior to trial. We affirm.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT ERRED IN DENYING . . . DEFENDANT'S R[ULE] 3:18-1 MOTION FOR JUDGMENT OF ACQUITTAL.
THE TRIAL COURT'S FAILURE TO, SUA SPONTE, CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF THEFT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF THE LAW AND A FAIR TRIAL (NOT RAISED BELOW).
A. THE TRIAL COURT ERRED BY FAILING TO, SUA SPONTE, CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF THEFT.
B. THE TRIAL COURT'S FAILURE TO, SUA SPONTE, CHARGE THE JURY ON THE LESSER-INCLUDED UNINDICTED OFFENSE OF THEFT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF THE LAW AND A FAIR TRIAL.
THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS BY FAILING TO APPROPRIATELY WEIGH THE AGGRAVATING AND MITIGATING FACTORS AND HENCE SENTENCED ...