NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 09-12-3002 and 10-09-2174.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael A. Priarone, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Fuentes, Simonelli and Haas.
Tried together before a jury on a four-count Atlantic County Indictment, No. 10-09-2174, defendant Hanifa Rodriguez and co-defendant Asiameik Mayo were convicted of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, and simple assault, N.J.S.A. 2C:12-1a, as lesser-included offenses of second-degree robbery, N.J.S.A. 2C:15-1 (count one). They were also convicted of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four). Defendant and Mayo were acquitted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1a(1) and N.J.S.A. 2C:5-2 (count two), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three).
The trial judge sentenced defendant to five years in prison on the theft by unlawful taking charge, with a two-year period of parole ineligibility; a concurrent six-month term for simple assault; and a concurrent one-year term for unlawful possession of a weapon. Appropriate fines and penalties were also assessed.
At the time of sentencing, defendant also pled guilty to a violation of probation (VOP) in connection with an earlier conviction for third-degree theft from the person, N.J.S.A. 2C:20-2b(2)(d), under Atlantic County Indictment No. 09-12-3002.On the VOP, the judge sentenced defendant to five years in prison, concurrent to the sentence imposed under Indictment No. 10-09-2174. Thus, defendant's aggregate sentence was five years, with a two-year period of parole ineligibility.
On appeal, defendant has raised the following contentions:
I. THE ASSISTANT PROSECUTOR'S COMMENTS DURING SUMMATION NOTING DEFENDANTS' SILENCE AND SUGGESTING DEFENDANTS HAD THE BURDEN TO PROVE THEIR INNOCENCE AND THAT THEY WERE CRIMINALS, REQUIRE REVERSAL OF DEFENDANT'S CONVICTIONS (Not Raised Below).
II. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT THE DEFENDANTS' STATUS AS "PROSTITUTES" COULD NOT BE USED TO INFER A CRIMINAL PROPENSITY ON THEIR PART, AND THE FAILURE TO SO INSTRUCT THE JURY REQUIRES THAT DEFENDANT BE ACCORDED A NEW TRIAL (Not Raised Below).
III.THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT FOUR BECAUSE A CANISTER OF PEPPER SPRAY IS SPECIFICALLY EXCLUDED AS ...