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State of New Jersey v. Kalin Spann

July 12, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KALIN SPANN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0549.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 2, 2011

Before Judges Cuff, Sapp-Peterson and Simonelli.

A grand jury indicted defendant Kalin Spann for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); second-degree robbery, N.J.S.A. 2C:15-1 (count two); and second-degree eluding the police, while creating a risk of death or injury to another person, N.J.S.A. 2C:29-2b (count three). The charges stem from defendant's involvement in a purse-snatching in Maplewood.

Following a jury trial, defendant was convicted of second-degree robbery (count two) and second-degree eluding the police, while creating a risk of death or injury to another person (count three), and on count one of the lesser-included offense of third-degree conspiracy to commit theft by unlawful taking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3. At sentencing, Judge Bernstein merged count one with count two and imposed an eight-year term of imprisonment, subject to 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 count three, the judge imposed a concurrent eight-year term of imprisonment subject to NERA. The judge also imposed the appropriate fines, penalties, and assessments.

On appeal, defendant raises the following contentions:

POINT I

THE TRIAL COURT ERRED IN FAILING TO SUPPRESS [DEFENDANT]'S FORMAL STATEMENT TO POLICE

POINT II

THE TRIAL COURT ERRED IN ALLOWING [DEFENDANT]'S STATEMENT TO BE ADMITTED INTO EVIDENCE AFTER A WITNESS FOR THE STATE TESTIFIED AS TO THE CONTENT OF THE STATEMENT

POINT III

THE TRIAL COURT ERRED IN ALLOWING THE STATE TO ELICIT TESTIMONY CONCERNING TRAFFIC VIOLATIONS DESPITE THE STATE'S FAILURE TO PROVIDE COPIES OF THE TRAFFIC TICKETS IN DISCOVERY THEREBY VIOLATING [DEFENDANT]'S RIGHT TO A FAIR TRIAL

POINT IV

THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTAL

POINT V

PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED [DEFENDANT] OF HIS RIGHT TO A FAIR TRIAL (PARTIALLY RAISED BELOW)

POINT VI

THE TRIAL COURT ERRED IN FAILING TO ACCURATELY INSTRUCT THE JURY (NOT RAISED BELOW)

POINT VII

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT VIII

THE TRIAL COURT MISAPPLIED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE (NOT RAISED BELOW)

We reject these contentions and affirm.

We gather the following facts from the evidence presented at trial. At approximately 11:00 a.m. on July 18, 2005, Esterina Giordano was in the parking lot of an A&P supermarket in Maplewood retrieving paperwork from her car while speaking to her employer on her cellular phone. Co-defendant Kevin Lewis approached Giordano, grabbed her phone and told her to "shut up." Giordano began screaming and fought back. Lewis pushed her into her car door, and she fell to the ground. The two then struggled over Giordano's black Versace bag. Lewis punched or pushed his hand into Giordano's face, eventually wrestled the purse away from Giordano and walked away. Defendant drove his car to Lewis, and Lewis got into it. Giordano saw the car slowly exit the parking lot and turn left. She memorized the license plate number.

Giordano flagged down the driver of a red truck on Valley Road, and the two pursued defendant's car. They spotted a police vehicle approaching in the opposite direction and stopped it. Giordano told Police Officers Butler and Radde of the South Orange Police Department what happened and gave them the license plate number of defendant's car. Officer Butler made a U-turn, activated his lights and sirens, pursued defendant's car, and radioed police headquarters to relay what was happening. Police Officer Terrence O'Connor later joined in the pursuit when he spotted defendant's vehicle turn on Irvington Road.

During the pursuit, the officers observed defendant travel at a high rate of speed, fail to stop at red lights and stop signs, including one near an elementary school, make an illegal left-hand turn, and travel on the wrong side of the street. The pursuit extended briefly onto the Garden State Parkway where defendant's vehicle reached a speed of sixty-five to seventy miles per hour. The pursuit continued for approximately eight miles. The officers saw a black purse thrown from the passenger-side window of defendant's car. Defendant entered a dead-end street, where he and Lewis were eventually arrested.

I.

Defendant contends in Point I that Judge Bernstein erred in failing to suppress a statement defendant gave to the police following his arrest. He argues that he did not make the statement voluntarily because he was not questioned until ten minutes after receiving his Miranda*fn1 rights, the police did not re-administer Miranda ...


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