On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 02-02-0168.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Yannotti and Guadagno.
Following a jury trial, defendant Frank A. Vasquez was found guilty of first degree robbery, N.J.S.A. 2C:15-1. He was sentenced to a twenty-year term of imprisonment subject to a No Early Release Act (NERA) parole ineligibility term. N.J.S.A. 2C:43-7.2. On appeal, defendant presents the following arguments:
BECAUSE THE CREDIBLE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY OF FIRST DEGREE ROBBERY, THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL ON THAT COUNT
THE TRIAL JUDGE ERRONEOUSLY RULED THAT DEFENDANT'S 1991 CONVICTION FOR ROBBERY COULD BE INTRODUCED BY THE STATE TO IMPEACH HIS CREDIBILITY IF HE TESTIFIED IN HIS OWN DEFENSE. THE JUDGE ALSO FAILED TO DETERMINE WHETHER THE DEFENDANT'S PRIOR CONVICTIONS WOULD BE SANITIZED
THE STATE IMPROPERLY ELICITED TESTIMONY THAT THERE WAS AN "ACTIVE WARRANT" FOR DEFENDANT'S ARREST, REPEATING IT EVEN AFTER THE JUDGE ADVISED COUNSEL THAT HE WOULD INSTRUCT THE JURY TO DISREGARD THE WARRANT REFERENCE, AND THE COURT'S BELATED INSTRUCTION WAS INSUFFICIENT TO CURE THE PREJUDICE
TRIAL COURT ERRED TO THE DEFENDANT'S PREJUDICE BY GIVING THE INSTRUCTION ON FAILURE TO TESTIFY WITHOUT DEFENDANT'S CONSENT
THE PROSECUTOR'S MISCONDUCT DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL
UNDER THE CIRCUMSTANCES OF THIS CASE, THE SENTENCE IMPOSED ON THE DEFENDANT, AT THE VERY TOP OF THE RANGE FOR A FIRST DEGREE OFFENSE, WAS EXCESSIVE
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The day after Thanksgiving is known in the retail trade as "Black Friday." It marks the beginning of the Christmas/holiday shopping season and many stores open early and close late on that date while offering enticing promotional sales. In 2001, Black Friday fell on November 23, and Value City department store in Vineland was open until midnight.
Shortly after closing, store manager William Waltman was counting the day's receipts from his store's busiest shopping day of the year. He was in a locked room in a secured area on the second floor called the "cash room" located adjacent to his office. Around 12:20 a.m., Luis Vasquez, defendant's brother and one of two security guards on duty, rang a bell seeking admittance to the secured second floor area. It was unusual for Luis to come to the second floor area as he was assigned to loss prevention and normally stationed near the store entrance. Nevertheless, when Waltman recognized Luis in a video security monitor, he pressed a buzzer allowing him to enter the area.
Waltman remained in the locked cash room for fifteen more minutes. By 12:35 a.m., he had finished counting the receipts and locked them in the store's vault. He set the alarm and as he was leaving the cash room, he noticed a man with a gun wearing a black ski mask and white gloves. The gunman ordered Waltman down on the floor, put the gun to his head and asked him, "Do you value your life?" The gunman told Waltman to open the safe but Waltman lied, saying the safe was on a time lock and could not be opened until morning. Waltman offered his own money and took out his wallet and gave the gunman all the cash he had, $260 to $300. When Waltman got up from the floor he noticed Luis in the room. The gunman then asked Luis to lead him out of the store.
Before opening the emergency exit door for defendant, Luis used his key to disable the fire alarm. A member of the cleaning crew saw Luis following the gunman toward the exit and, after unlocking the door, Luis told the gunman, "go, go, go."
Luis was arrested later that day by Detective Thomas Martorano of the Vineland Police Department and admitted facilitating the robbery in return for a share of the proceeds.
He initially did not identify his brother as the gunman but named a disgruntled former employee, Velar. Further investigation excluded Velar as a suspect and Luis, who remained incarcerated, was again interviewed. Luis told Martorano, Velar was not involved and offered to identify the gunman in exchange for dismissal of the charges. When this request was denied, Luis identified his brother, "Frankie," as the gunman but claimed he did not know Frankie was planning the robbery and only recognized him while the robbery was in progress.
Martorano checked defendant's criminal history and, after finding an active warrant, went to defendant's home and arrested him on the unrelated warrant. Martorano transported defendant to the police department and, after advising him of his Miranda*fn1 rights, told him his brother identified him as the gunman in the Value City robbery. Defendant replied that he wanted to do the "right thing" but asked to speak with his brother first.
Martorano arranged for defendant to speak with Luis who was incarcerated in the Cumberland County jail. After his first conversation with Luis, defendant did not immediately agree to provide details of the robbery. A second call came in from Luis who complained to Martorano his brother had been arrested without his cooperation as he had hoped to assist in the investigation in return for consideration with his charges. Martorano explained they arrested defendant on an unrelated warrant and not on the basis of his information.
After the second conversation with his brother, defendant admitted planning and executing the robbery. He knew Black Friday would generate considerable revenue at Value City and he expected to steal over $300,000 in store receipts. He also knew the store would remain open until midnight, so he arrived at 11:45 p.m. and hid in the bathroom, standing on the toilet.
Defendant claimed that he used a fake plastic gun and admitted taking $241 from Waltman. Although he attempted to exculpate Luis, defendant told Martorano that after he took cash from Waltman, Luis offered him money from his wallet stating he wanted "to make it look good."
Defendant was charged in a four-count indictment with robbery and related charges but only the robbery charge was submitted to the jury.
Luis pled guilty to participating in the Value City robbery and received a five-year sentence in return for agreeing to testify truthfully at his brother's trial. However, at trial, Luis claimed that he could not remember any ...