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State of New Jersey v. Percy Henry Patrick

January 27, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PERCY HENRY PATRICK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-10-00885.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 17, 2012

Before Judges A. A. Rodriguez, Ashrafi and Fasciale.

Defendant appeals from his conviction for third-degree theft from the person, N.J.S.A. 2C:20-2(b)(2), disorderly persons simple assault, N.J.S.A. 2C:12-1(a)(1), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). The judge imposed an aggregate term of five years in prison with twenty months of parole ineligibility. We affirm.

At approximately 4 a.m. on February 8, 2008, the victim, whom we refer to as M.C., left his home and rode his bicycle to pick up breakfast before going to work. As he turned onto a different street, defendant came from behind a vehicle, punched M.C. in the forehead, knocking him to the ground, and said, "'Give me the money and give me the bike.'" M.C. recognized defendant and said, "'Percy, it's me, [M.C.].'" Defendant again demanded the money and the bicycle and struck M.C. in the head two more times.

When M.C. attempted to get back on his bicycle, defendant grabbed him by the collar, pulled him off, and struck him in the mouth. Defendant tried unsuccessfully to reach inside M.C.'s pockets. M.C. then fled down the street toward the police station. About two minutes later, he flagged down Police Officer Edward Connolly.

M.C. was "bleeding from his head," did not appear intoxicated, and was "excited, upset." He told Connolly what had happened, provided defendant's name, and described the bicycle. Connolly relayed this information over the police radio.

A couple of minutes later, Detective Jeffrey Parvin located defendant riding the bicycle about one and a half blocks from where M.C. had flagged down Connolly. Defendant tried to avoid Parvin, who rolled down his window, identified himself as a police officer, and asked defendant to stop. Defendant continued to ride, doubled back, and rode by Parvin's car. The detective yelled to defendant to stop, but he did not. The detective switched on his strobe lights and siren, blew his air horn, and followed defendant.

After doubling back again to avoid the detective, defendant came into contact with Officer Jason Hovermann, who exited his marked police car and ordered defendant to stop. When defendant still did not stop, Hovermann tackled him off the bicycle and advised him that he was under arrest. On the ground, defendant concealed his hands under his body to avoid being handcuffed, ignored orders to cooperate, flailed his legs, and kicked out at the officers. At that point, Parvin sprayed defendant with a burst of pepper spray, and defendant stopped resisting. Defendant sustained no injuries and was treated for the pepper spray.

At the police station, defendant gave a recorded statement. He claimed that M.C. was on the bicycle trying to buy cocaine. Defendant said he gave M.C. two five dollar bills for a ten dollar bill, and that M.C. then went into a house. Defendant claimed that he then noticed that instead of a ten dollar bill, M.C. had merely given him back one of the five dollar bills.

Defendant stated that when Parvin saw him, he was sitting on M.C.'s bicycle waiting for him to return. Defendant then changed his story and said he confronted M.C. about the money and M.C. walked away, leaving defendant with the bicycle. Defendant later stated that he and M.C. were fighting, during which time defendant was sitting on the bicycle. Defendant also claimed that M.C. was on the bicycle, rode into a parked car, and fled on foot, at which point defendant took the bicycle to keep it from "crackhead girls." Subsequently, M.C. identified and recovered the bicycle.

A grand jury indicted defendant and charged him with second-degree robbery, N.J.S.A. 2C:15-1(a), fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). After a hearing, a judge denied defendant's motion to suppress his statement to police. In October and November 2009, a different judge conducted a five-day jury trial. The jury acquitted defendant of third-degree resisting arrest, but convicted him of fourth-degree resisting arrest and the lesser included offenses of simple assault and theft from the person.

On appeal, defendant raises the following points:

POINT ONE

DEFENDANT'S STATEMENT TO THE POLICE WAS NOT MADE AFTER A KNOWING, INTELLIGENT WAIVER OF HIS FIFTH AMENDMENT RIGHTS.

POINT TWO

DEFENDANT WAS PREJUDICED BY THE PRESIDING CRIMINAL PART JUDGE'S REFUSAL TO PERMIT A PLEA TO THE STATE'S AMENDED PLEA OFFER.

POINT THREE

THE TRIAL COURT UNDULY LIMITED DEFENDANT'S USE OF THE CRIMINAL CONVICTIONS OF [M.C.] TO ...


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