On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-09-0700.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 24, 2011
Before Judges Simonelli and Espinosa.
Defendant appeals from his conviction for second-degree robbery, N.J.S.A. 2C:15-1, his sentence on that charge, and the imposition of two consecutive six-month sentences for contempt pursuant to R. 1:10-1(d). We affirm.
On August 25, 2008, Raymond Vitellaro, an asset loss prevention officer at Walmart in Watchung, observed defendant take an HP printer off the shelf, place it in a shopping cart and subsequently go to the customer service desk, where he produced a receipt. The serial number on the receipt did not match that on the printer. After the refund was completed, Vitellaro called the Assistant Manager, Bill Natisin, and the two of them stopped defendant and asked him to accompany them to the office. Defendant claimed he did not have any identification. Vitellaro called the Watchung police and asked defendant to remain until they arrived. Defendant asked to go to the bathroom and, after initially denying him, they escorted him toward the bathroom. However, rather than proceeding to the bathroom, he struck Vitellaro and tried to bite him. Defendant got away from them and ran. Vitellaro followed defendant to the front door vestibule where he "got popped" in the back of the head by defendant. Defendant was apprehended by the police in another store.
In addition to the instruction on robbery, charges on theft and simple assault were given to the jury at defendant's request. During deliberations, the jury asked the court to "[e]xplain the difference or definition of robbery and simple assault . . . [d]oes theft plus simple assault equal robbery?" Both the State and defendant agreed that the jury should be instructed that they were not to consider simple assault unless and until they found defendant not guilty of robbery. The court instructed the jury accordingly and instructed them once again on the elements of robbery, theft, and simple assault. They then returned a verdict of guilty on the robbery charge.
At sentencing, the court found no mitigating factors and found that the following aggravating factors applied: N.J.S.A. 2C:44-1(a)(3) (risk that the defendant will commit another offense); N.J.S.A. 2C:44-1(a)(6) (extent of the defendant's prior criminal record and seriousness of offenses); and N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others). The court imposed a sentence of ten years with an eight and one-half period of parole ineligibility as well as appropriate fines and penalties.
When the court asked defendant if he understood his appeal rights, defendant responded by stating, "Yeah, I understand that you all railroaded the shit out of me. That's what I understand." Although his attorney attempted to calm him down and the court attempted to resume asking him if he understood his right to appeal, defendant persisted in confrontational behavior, stating, "you're all - so full of shit." The court warned defendant that he would impose an additional six months for contempt of court. Defendant was defiant, stating, "Add six. What the fuck I care now." The court warned defendant again about imposing six months for contempt. Defendant replied, and repeated, "Fuck contempt of court." Both his attorney and a court officer attempted to calm defendant down. The court said, "I'm going to give you one opportunity -" but defendant interrupted, "Give me - give me - don't give me shit, mother fucker. Do what the fuck you've been doing to every black mother fucker that come in this courtroom." Defendant continued to interrupt the court, repeating, "Fuck you" three times, calling the judge a "crazy ass mother fucker," telling him, "Eat shit and bark at the moon, sorry son of a bitch." When the judge said he was going to place on the record his reasons for imposing an additional six month sentence, defendant interrupted again, stating "[i]s that all you're going to put on it, the six months?" He continued to interrupt and taunt the court, saying, "Keep adding six months then" and "well shut the fuck up and do . . . what you're going to do."
The court proceeded to set forth the acts it deemed contumacious as the basis for imposing an additional sentence of six months. Defendant continued to interrupt. The court noted further that this exchange occurred in a courtroom filled with fifty people.
After the court ordered defendant to be remanded, defendant replied, "Fuck you, bitch" and then stated "Suck my ass, you cracker bitch." The court had him returned to counsel table and imposed an additional six months for contempt, to be served consecutive to the prior sentences. After remanding defendant once again, the court noted that defendant "held up his left hand with the middle finger extended in a gesture[.]"
Defendant raises the following arguments in this appeal:
THE TRIAL JUDGE ERRED IN FAILING TO CLEARLY CHARGE THE JURY WITH THE POSSIBILITY OF A THEFT, WHICH WAS COMPLETED, AND FOLLOWED BY A ...