On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-05-00669.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2011 - Decided
Before Judges Grall and LeWinn.
A jury found defendant Christopher T. Carr guilty of second-degree robbery, N.J.S.A. 2C:15-1. Because defendant committed this robbery while he was released on bail pending adjudication of another robbery charge, of which he was subsequently convicted, defendant was eligible for an extended term pursuant to N.J.S.A. 2C:44-5.1. The judge granted the State's motion for imposition of the extended term and sentenced defendant to a fourteen-year term of imprisonment subject to parole ineligibility and supervision terms required by the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appeals, challenging two of the judge's rulings on evidentiary issues and contending that during sentencing, the judge should have given more consideration to defendant's age, bipolar disorder and the fact that he did not possess a weapon during the robbery. We affirm.
On the morning of December 2, 2007, defendant borrowed a truck from his mother. Instead of using the truck to move his belongings, as he had said, defendant drove to a bank. Upon entering the bank, he first went to the area where withdrawal slips are kept and then approached a teller. He handed the teller a withdrawal slip on which he had written, "I have a gun. Give me $10,000" and the name "John Smith."
The teller panicked because she did not have $10,000 in her drawer, until she remembered that she could get that amount from the bank cash machine without a manager's approval. After getting the cash, she gave it to defendant. As defendant left, the teller cried and yelled. A co-worker who saw the teller's interaction with defendant described her as nervous, shaking and flustered and confused.
Later that day, defendant returned the truck to his mother and gave her four $100 bills. Thereafter, defendant attempted to hide out but several days later, he was apprehended at a shopping center. Following his arrest, defendant gave statements to the police, which were introduced at trial. He testified and acknowledged that he was the person who took money from the teller. The theory of the defense was that defendant's crime was a theft, not a robbery because he did not have the purpose of putting the teller "in fear of immediate bodily injury." N.J.S.A. 2C:15-1a(2).
Defendant raises three issues on appeal:
I. EVIDENCE INTRODUCED BY THE STATE THAT THE DEFENDANT WAS IMPOVERISHED, AND THUS COMMITTED THE CRIME OF ROBBERY DUE TO HIS IMPECUNIOSITY, WAS SO PREJUDICIAL AS TO DENY DEFENDANT HIS FEDERAL AND STATE RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, AND 10) [sic]. (PARTIALLY RAISED BELOW).
II. THE ADMISSION OF HIGHLY PREJUDICIAL OTHER-CRIMES EVIDENCE, INCLUDING THE FACT THAT DEFENDANT HAD COMMITTED A PRIOR BANK ROBBERY, IN VIOLATION OF THE COURT'S SANIZATION [sic] RULING, DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, AND 10) [sic].
III. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
The argument presented in Point I requires no discussion beyond the observation that it rests on an erroneous assumption that an unredacted transcript of the statement defendant made to the police was given to the jurors to follow while they listened to the redacted recording. The State's appendix, however, includes the redacted transcript bearing an exhibit tag demonstrating that it was presented to the jurors at trial. Based on our comparison of the redacted and unredacted transcripts, we can state that the statements about ...