On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-09-2194.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and J. N. Harris.
Following a trial before Judge Jamie S. Perri and a jury, defendant Daniel J. Levins was found guilty of armed robbery; third-degree aggravated assault, as a lesser included offense; unlawful possession of a weapon (a baseball bat); possession of a weapon for an unlawful purpose; and criminal mischief. In this appeal, defendant challenges rulings made pretrial and during trial concerning the admissibility of evidence which defendant contends undercut his defense that he never intended to rob the liquor store and that his conduct was an attempt to commit suicide by provoking the operator of the store to shoot him. We reject defendant's claims of prejudicial error and affirm his conviction and sentence.
The facts of this case are generally undisputed. Defendant was a regular customer of the Spirits Unlimited Liquor Store in Hazlet. A few minutes prior to 10:00 p.m. on February 11, 2008, a man wearing a ski mask and sunglasses entered Spirits Unlimited while carrying a baseball bat. The man demanded that the two store clerks open the cash register and give him the money. When they did not immediately comply, defendant proceeded to smash the cash register, bottles, the credit card machine and a lottery machine. He then walked around the counter and struck the male clerk in the head with his bat. He also struck him in the shoulder and forearm. A struggle ensued and the two men fell to the floor. During the struggle, the clerk removed assailant's mask and sunglasses. The assailant stopped his attack and attempted to run towards the door, however, before he could flee, the clerk grabbed the bat and struck him in the back of the head. The assailant escaped and the clerk immediately called police.
Police responded to the clerk's 911 call and soon arrived at the scene. Both clerks were familiar with defendant and identified him as the person who had attempted to rob the store. They reported that defendant lived in a trailer park behind the liquor store. A canine unit was called in and led police to defendant's home. Defendant failed to answer the door, and the officers detected the odor of gas, prompting them to enter the trailer by kicking in the door. They discovered defendant unconscious on the kitchen floor with blood coming from his head and wrists. He had slit his wrists and turned on the gas oven. The officers shut off the gas, opened windows, and removed defendant from the trailer. They treated him with first aid and transported him to the hospital. After Miranda*fn1 warnings were administered to defendant in the hospital, he disclosed to the officer on duty that he had been in landlord-tenant court, and that he was to pay $3,000 or be evicted.
On September 23, 2008, a grand jury returned Indictment No. 08-09-2194 against defendant for armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(1) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four); and third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count five). The indictment was later amended to downgrade third-degree criminal mischief to the fourth degree.
Following a four-day trial, the jury returned its verdict, after which the court sentenced defendant to a twelve-year term with an eighty-five percent period of parole ineligibility on count one, armed robbery; a four-year concurrent term on count two, aggravated assault; and an eighteen-month concurrent term on count five, criminal mischief. The weapons offenses, counts three and four, were merged with count one. The court also imposed statutory fines, assessments and penalties.
Defendant makes the following arguments on appeal:
POINT I: THE DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY THE STATE'S EVIDENCE AND ARGUMENT THAT THE DEFENDANT WAS MOTIVATED TO COMMIT THE THEFT BECAUSE HE WAS DESTITUTE. (Not raised below)
POINT II: THE TRIAL COURT'S INSTRUCTION TO THE JURY DIRECTED THE JURY TO FIND THAT THERE HAD BEEN A ROBBERY, THEREBY VIOLATING THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION. (Not raised below)
POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE.
POINT IV: THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAIVED HIS MIRANDA RIGHTS VOLUNTARILY AND KNOWINGLY.
POINT V: THE TRIAL COURT IMPROPERLY ADMITTED THE VICTIM'S PRIOR CONSISTENT TAPED STATEMENT.
POINT VI: THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
We have carefully considered defendant's arguments in light of the facts and applicable law, and we are not persuaded that any of the asserted errors have merit. Points I and II were not presented at trial and therefore are subject to review for plain error. R. 2:10-2. Under that standard, we will not reverse on the ground of such error unless the appellant shows the error was "clearly capable of producing an unjust result." Ibid. These asserted errors do not have that capacity.
Defendant argues he was prejudiced by the State's argument that he committed robbery because he was destitute. He owed $3,000 in rent and faced eviction, but at trial, defendant sought to establish that he did not intend to rob the Spirits Unlimited store. Instead, he contends he attempted to provoke the store clerk into shooting or otherwise killing him. Defendant testified that he believed the store clerk had a gun behind the counter and he hoped to be shot to death. He asserts on appeal that evidence of wealth or poverty is inadmissible and prejudicial evidence. The State argues, and the trial court determined, that defendant placed his intent and motive at issue through his defense of attempted ...