On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-03-00264.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lihotz.
Tried by a jury, defendant Joseph M. Gratacos was convicted of third-degree burglary, N.J.S.A. 2C:18-2 (count one); the lesser included disorderly person's offense of theft by unlawful taking, N.J.S.A. 2C:20-3 (count two); and fourth-degree hurling bodily fluids at a law enforcement officer, N.J.S.A. 2C:12-13 (count three).*fn1 Defendant was sentenced to a four-year custodial term on count one; a concurrent six-month term on count two, and a consecutive nine-month term for the conviction on count three.
On appeal defendant argues:
BECAUSE DRAGGING A POWER WASHER DOES NOT PROVIDE SUFFICIENT JUSTIFICATION FOR CONDUCTING AN INVESTIGATORY STOP, THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED. COUNSEL'S FAILURE TO CHALLENGE THE STOP CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW)
A. THE TRIAL COURT, SUA SPONTE, SHOULD HAVE HELD A TESTIMONIAL HEARING ON THE MOTION TO SUPPRESS.
B. MOTION COUNSEL'S FAILURE TO CHALLENGE THE LEGALITY OF THE INVESTIGATORY STOP CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
THE TRIAL COURT ERRED IN DENYING THE DEFENSE APPLICATION FOR A MISTRIAL FOLLOWING TESTIMONY SUGGESTING THAT MR. GRATACOS HAD A PRIOR CRIMINAL RECORD AND IRRELEVANT TESTIMONY THAT HE SPEWED PROFANITIES AND DEROGATORY TERMS AT A POLICE OFFICER WHEN HE WAS IN CUSTODY.
A. PITTS'S TESTIMONY CREATED A STRONG INFERENCE THAT MR. GRATACOS WAS A HABITUAL CRIMINAL OFFENDER, AND WAS INCAPABLE OF BEING CURED BY CURATIVE INSTRUCTIONS.
B. EVIDENCE THAT MR. GRATACOS UTTERED PROFANITIES AT PITTS WAS UNRELATED TO ANY FACTS IN DISPUTE AND UNDULY PREJUDICIAL.
C. THE ADMISSION OF EVIDENCE OF RACIAL ANIMUS AND FREQUENT INTERACTION WITH LAW ENFORCEMENT WARRANTED A MISTRIAL.
DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE AND IN IMPOSING THE SENTENCE, THE TRIAL COURT ERRED BY TAKING INTO CONSIDERATION FACTS NOT FOUND BY THE JURY AND DOUBLE COUNTING AN ELEMENT OF THE OFFENSE OF THROWING BODILY FLUIDS.
We are not persuaded and conclude no error warrants a new trial or modification of defendant's ...