NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 25, 2012
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-10-745.
Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hubbard, of counsel and on the brief).
Nathan C. Howe, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Howe, of counsel and on the brief).
Before Judges Fuentes, Harris, and Koblitz.
Defendant Victor Rouse was tried before a jury and convicted of second degree robbery, N.J.S.A. 2C:15-1. The trial court sentenced him to a term of eight years, with an eighty-five percent period of parole ineligibility and a three-year term of parole supervision upon completion of his sentence as required by the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant raises a number of arguments on appeal attacking the manner in which the trial court instructed the jury on a variety of legal issues that arose during the trial. In his view, the trial court's erroneous rulings materially prejudiced his defense and deprived him of a fair trial. With respect to the sentence imposed by the trial court, defendant contends that the trial judge erred in failing to find, as a mitigating factor, that he "did not contemplate that his conduct would cause or threaten serious harm." N.J.S.A. 2C:44-1(b)(2). As a consequence, defendant argues that his sentence was both excessive and unduly punitive.
After reviewing the record developed before the trial court and mindful of our standard of review, we affirm. We derive the following facts from the evidence presented at trial.
On October 7, 2009, at approximately 7:15 p.m., Kristin Kablis arrived at McCormick's Pub located at the Somerset Hotel in Somerville to play table pool as part of a team consisting of seven other players. At some point between 8:30 and 9:00 p.m., Kablis decided to go out alone to smoke a cigarette. She walked out using the pub's side exit that leads to Main Street in Somerville.
She walked down the stairs to call her friend Jennifer Stroka, using her cellular phone. When she made the call, Kablis commented that it was "really windy" and Stroka told her that "she couldn't hear [her]." She then "walked down a little bit [where] there is a tunnel on the side and [she] went into the tunnel where [Stroka] [could] hear [her]." Utilizing a photograph depicting the tunnel in question, the prosecutor asked Kablis to step down from the witness chair and point out for the jury where she was standing at the time. Kablis told the jurors that she was standing on "a little ledge . . . on the side . . . where the shadow starts to come in."
After recapitulating that she was in the tunnel, on the phone with Stroka, smoking a cigarette, the prosecutor then asked Kablis to describe what occurred next. She testified as follows:
Um, this gentleman came in and all of a sudden he was next to me leaning against my shoulder and asked me for a cigarette. I gave him the cigarette and I gave him the lighter thinking that was going to be it. He lit his cigarette. I got the lighter back and at that point he put his arms against the wall and asked me for money and I told him I didn't have any money, and he said, I'm not asking you for money, I'm telling you to give me money, and I kind of pushed away and he -- he said what exact --are you on the phone with your man? And I didn't respond. And he goes, oh, that that is your man, so he can't do anything and along the lines that you are going to be in trouble, and I said, actually my man is inside. At that point I tried to push him to move and he was in my face and he grabbed my arm and I hurried up and kind of elbowed him, got around the corner . . . into the light and he was following me and I turned around and moved faster and my friend Doug [Hendry] came out of the bar and saw me there so he walked towards me and he saw him walking towards me and then the gentleman left and walked the other way at that point.
Kablis indicated that the entire episode lasted "a minute to two minutes." As Hendry approached, she asked him "not leave [her] side" and "pretend" he was her boyfriend. Hendry testified that when he came out of the bar, Kablis was "on her phone having a cigarette" and that "somebody to her left [was] walking away from her." He said she "seemed pretty shaken" and that "[w]hen she got off the phone she explained to [him] that somebody had ...