NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-02-0315.
Joseph E. Krakora, Public Defender, attorney for appellant Mario Alvarez-Urena (Frank M. Gennaro, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Waljude Rodriguez (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the briefs).
Before Judges Messano and Lihotz.
These appeals, calendared back-to-back, are consolidated for purposes of this opinion. Co-defendants are husband and wife and were charged, along with their daughter, Chrissy Alvarez, in a multi-count indictment. Tried by a jury, defendants were convicted of third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a).
In separate appeals, defendants challenge their convictions. Defendant Mario Alvarez-Urena argues:
THE TRIAL JUDGE SHOULD HAVE RECUSED HIMSELF.
DETECTIVE HAAS' NARRATION OF THE VIDEO RECORDING CAPTURED BY THE CAMERA IN A PATROL CAR WAS ERROR WHICH UNDULY PREJUDICED DEFENDANT.
THE TRIAL COURT'S ADMISSION OF A HEARSAY STATEMENT MADE BY DOCTOR JACOBS WHICH PURPORTED TO BE DEFENDANT'S ADMISSION THAT HE ASSAULTED THE POLICE, ALTHOUGH EVENTUALLY STRICKEN, DENIED DEFENDANT A FAIR TRIAL.
THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A MISTRIAL WAS ERROR.
In her appeal, defendant Waljude Rodriguez argues:
THE TRIAL JUDGE ERRED IN FAILING TO RECUSE HIMSELF FROM THE CASE WHERE THE POTENTIAL FOR BIAS EXISTED AS A RESULT OF THE TRIAL COURT'S INVOLVEMENT IN A PRIOR CRIMINAL CASE INVOLVING THE SAME JUVENILE AND SOME OF THE SAME FORT LEE POLICE OFFICERS.
THE JURY VERDICT FINDING RODRIGUEZ GUILTY OF THIRD DEGREE RESISTING ARREST, PURSUANT TO N.J.S.A. 2C:29-2, AND ACQUITTING HER ON AGGRAVATED ASSAULT, PURSUANT TO N.J.S.A. 2C:12-1, WAS INCONSISTENT.
THE JURY VERDICT CONVICTING RODRIGUEZ OF THIRD DEGREE RESISTING ARREST CAN NOT STAND AS THE JURY VERDICT WAS AGAINST THE WEIGHT OF EVIDENCE.
THE TRIAL COURT ERRED IN FAILING TO OVERTURN THE PROGRAM DIRECTOR'S DENIAL OF RODRIGUEZ'S ENTRY INTO PTI, EVEN THOUGH THE DECISION CONSTITUTED A GROSS ...