On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-07-2065.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Espinosa.
Following a jury trial, defendant Peter G. Repoli was convicted of the disorderly persons offense of false imprisonment, N.J.S.A. 2C:13-3, a lesser-included offense of criminal restraint, N.J.S.A. 2C:13-2. The judge also found defendant guilty of possession of drug paraphernalia, N.J.S.A. 2C:36-2, a disorderly persons offense. The judge subsequently sentenced defendant to 364 days in the county jail on the false imprisonment conviction and imposed a concurrent six-month sentence to the county jail on the drug paraphernalia conviction. Appropriate fines and penalties were also imposed.
Before us, defendant raises the following arguments:
POINT I: THE TRIAL COURT ERRED BY PERMITTING THE STATE TO PRESENT TESTIMONY THAT A SEARCH WARRANT WAS ISSUED TO SEARCH THE DEFENDANT'S HOME FOR EVIDENCE OF CRIMINAL ACTIVITY. (Not Raised Below)
POINT II: THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY, SUA SPONTE, WITH A LIMITING INSTRUCTION CONCERNING THE SEARCH WARRANT TESTIMONY. (Not Raised Below)
POINT III: THE TRIAL COURT ERRED BY NOT STRIKING THE TESTIMONY OF DETECTIVE FUNK THAT THE POLICE MAY HAVE OBTAINED MR. REPOLI'S PHOTOGRAPH BY INSERTING HIS STATE IDENTIFICATION NUMBER INTO THE POLICE COMPUTER AND ALSO BY NOT PROVIDING AN ADEQUATE JURY INSTRUCTION. (Partially Raised Below)
POINT IV: DETECTIVE FUNK WAS NOT QUALIFIED AS AN EXPERT. THEREFORE, HIS OPINION THAT THE GLASS PIPES, BRILLO SUBSTANCE AND NAIL WAS DRUG PARAPHERNALIA WAS INADMISSIBLE IN VIOLATION OF N.J.R.E. 702. (Not Raised Below)
POINT V: MR. REPOLI WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S (A) FAILURE TO OBJECT TO THE SEARCH WARRANT TESTIMONY; (B) FAILURE TO SEEK A CURATIVE INSTRUCTION CONCERNING THE SEARCH WARRANT; (C) FAILURE TO MOVE TO STRIKE THE "STATE IDENTIFICATION NUMBER" TESTIMONY; AND (D) FAILURE TO OBJECT TO DETECTIVE FUNK'S EXPERT TESTIMONY. (Not Raised Below)
POINT VI: THE TRIAL COURT'S IMPOSITION OF A FOURTH DEGREE CONVICTION FOR FALSE IMPRISONMNET, N.J.S.A. 2C:13-3, WAS AN ILLEGAL SENTENCE AS FALSE IMPRISONMENT IS A DISORDERLY PERSONS OFFENSE. (Not Raised Below)
The State concedes that the sentence imposed for false imprisonment was illegal and a remand is necessary. We have considered the remaining arguments in light of the record and applicable legal standards. We affirm.
At approximately 6:00 a.m. on the morning of March 20, 2009, Ervin Gamez was walking down Henry Street in Orange when a man approached and offered to pay Gamez to repair a door frame. At trial, Gamez identified defendant as that person. Gamez further testified that defendant grabbed his upper right arm and pushed him into a waiting taxi. While in the taxi, defendant gave Gamez business cards with his name and address and told Gamez that he was an attorney.
The two men rode in the taxi to defendant's apartment. Gamez observed the broken door frame and asked defendant for tools to make the repairs. Gamez refused to enter the apartment, but defendant grabbed his upper right arm and pushed him inside. Defendant told Gamez to sit ...