STATE OF NEW JERSEY v. MIGUEL A. ALQUINO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2275-03T42275-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIGUEL A. ALQUINO,

Defendant-Appellant.

_____________________________

 

Submitted November 1, 2005 - Decided February 7, 2006

Before Judges Collester and Lisa.

On appeal from Superior Court of New Jersey,

Law Division, Union County, 98-07-0986-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Linda Mehling, Assistant Deputy

Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Steven J. Kaflowitz,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Tried to a jury, defendant Miguel Alquino was found guilty on an indictment charging the following: third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count one); second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count two); third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(b) (count three); and first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count four). The sentencing judge merged counts one and three with count four and imposed a custodial term of ten years with an eighty-five percent parole bar and a five-year period of parole supervision pursuant to the No Early Release Act (NERA). A concurrent five year term was imposed on count two. Defendant appeals his conviction and sentence.

At trial the State's first witness was Kenneth Spence. He related that at about 10 a.m. on March 13, 1998, he left his house on Woodland Avenue in Roselle Park to walk to his pick-up truck parked outside. He unlocked the doors, removed one of the seat belts and took it to his basement to make repairs. About five minutes later he came upstairs and saw an unoccupied car with the engine running parked across the street. Spence went outside to check on his truck. He opened the passenger door and saw a man sitting behind the wheel. A tire iron was lying on the seat, the radio face plate had been removed, and the radio was on the floor. After Spence ordered the man out of his truck, the man grabbed the tire iron and began walking toward the car parked across the street with the motor running. Spence followed about five feet behind. He testified that the man turned around, raised the tire iron in the air and said to Spence, "You want to be dead[?]" Spence testified he felt threatened and told the man to leave before he called the police. After the man got into his car and drove away, Spence called the police.

Roselle Park police officer William Masterson arrived a few minutes later. Spence gave him a description of both the driver and the car, including the license plate information. The police officer left, and Spence remained outside to tell a neighbor of the incident. When Spence headed back into his house, the neighbor called to him that the perpetrator's car had just driven by. Spence got into his truck and followed the car until it pulled into the Union YMCA parking. He then went to a nearby drugstore and called the police.

Union Township Officer Kevin Murphy testified that after he received a radio transmission about the incident at Spence's house, he saw the car described by Spence. He stopped it and called other officers for assistance. Among those responding was Officer Masterson. Defendant was removed from the car and placed in custody. When Spence arrived at the scene, he identified the defendant as the man who had been inside his truck. The officers searched the vehicle and found a tire iron and a pair of handcuffs.

Defendant did not testify or call any witnesses. On appeal he makes the following arguments:

POINT I - THE JUDGE'S CHARGE ON ROBBERY DID NOT SUFFICIENTLY EXPLAIN THE CONCEPT OF "IMMEDIATE FLIGHT" UNDER THE FACTS OF THIS CASE REQUIRING REVERSAL OF DEFENDANT'S ROBBERY CONVICTION. (Not Raised Below.)

POINT II - THE ADMISSION OF IRRELEVANT AND INFLAMMATORY EVIDENCE THAT THE POLICE FOUND A SET OF HANDCUFFS AND A RESIDENT ALIEN CARD BEARING DEFENDANT'S NAME IN HIS CAR DENIED DEFENDANT HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, 1, 10. (Not Raised Below.)

POINT III - UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE THE INTERESTS OF JUSTICE DEMANDED A SENTENCE IN THE SECOND-DEGREE RANGE; HENCE, THE IMPOSITION OF A 10-YEAR TERM WAS MANIFESTLY EXCESSIVE.

The statute defines the crime of robbery as follows:

A person is guilty of robbery if, in the course of committing a theft, he:

. . .

(2) Threatens another with or purposely puts him in fear of immediate bodily injury[.]

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

[N.J.S.A. 2C:15-1(a).]

Defendant argues that he could not be convicted of robbery unless the jury found that he threatened Spence while in "immediate flight" from the car burglary. He asserts by not specifically defining "immediate flight" for the jury, the judge failed to instruct the meaning of an essential term in this case and committed reversible error. See State v. Gartland, 149 N.J. 456, 475 (1997); State v. Olivio, 123 N.J. 550, 567-68 (1991); State v. Concepcion, 111 N.J. 373, 379 (1988). Since no objection was made at trial, our standard of review is plain error, i.e., whether the error possessed a clear capacity for producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971).

Defendant contends that under State v. Mirault, 92 N.J. 492, 500-01 (1983), the jury was obliged to determine whether he reached a point of at least temporary safety prior to the threat as opposed to a threat made "in the course of committing a theft" within the meaning of N.J.S.A. 2C:15-1. In Mirault, after a police officer confronted the defendant during a theft and ordered him to "freeze," the defendant leaped at the officer and tried to grab his revolver. The Supreme Court rejected the argument that the theft was complete when the police officer ordered him to "freeze" and held that when the initial crime is closely connected in point of time, place and causal connection, it is part of one continuous transaction. Id. at 500. Applying that analysis, the Court declared,

Here the continuous and violent struggle took but a few minutes, never moved beyond the scene of the crime, and never found the defendant in complete custody until the backup police arrived. Under the circumstances the robbery and aggravated assault were clearly part of a continuous transaction; the assault thus took place "in the course of committing a theft." N.J.S.A. 2C:15-1.

[Id. at 501.]

Here, the threat was part of a continuous transaction stemming from the attempted theft of Spence's car radio. The defendant was never out of Spence's presence, did not reach his car and was within five feet of him when he made the threat. Compare State v. Grissom, 347 N.J. Super. 469 (App. Div. 2002) and State v. Harris, 357 N.J. Super. 532 (App. Div. 2003). He did not arrive at a point of temporary safety by simply starting to walk away. Therefore, a more specific definition on "immediate flight" was not mandated and did not constitute error, much less plain error.

Defendant next argues that the trial testimony of police witnesses detailing they found handcuffs in defendant's car and a resident alien card on his person was inflammatory and denied defendant a fair trial. While defendant claims that the disclosure of his resident alien card was prejudicial because it disclosed he was a foreigner, he fails to show how this information adversely affected him when the testimony was simply that he gave the officers the card as identification. Furthermore, in light of the overwhelming evidence of defendant's guilt, the fleeting reference to handcuffs found in defendant's car was not so prejudicial to divert the minds of the jurors from a reasonable and fair evaluation of the evidence. State v. Covell, 157 N.J. 554, 568 (1999) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)).

 
Finally, defendant contends his ten-year sentence was excessive and that the interest of justice required a sentence in the second-degree range. There is no merit to this argument. Defendant's conviction was for first-degree robbery, and his sentence of ten years is the lowest term for a first-degree offense. Our sentencing scheme is offense oriented, and the higher the degree of the crime, the greater the public need for protection and deterrence. State v. Megargel, 143 N.J. 484, 504 (1996). The trial judge did not find that the mitigating factors substantially outweighed the aggravating factors or that the interests of justice demand a downgraded sentence. See N.J.S.A. 2C:44-1(f). We find no error or abuse of discretion in the sentence, and the ten-year term does not shock our conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984); State v. Hodge, 95 N.J. 369, 377 (1984).

Affirmed.

(continued)

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A-2275-03T4

February 7, 2006