STATE OF NEW JERSEY v. GARY MAUGERI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2350-04T22350-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY MAUGERI,

Defendant-Appellant.

 

 

Argued May 30, 2006 - Decided August 11, 2006

Before Judges Cuff, Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-02-0149.

Richard Mischel argued the cause for appellant (Mischel, Neuman & Horn, attorneys; Mr. Mischel, on the brief).

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, of counsel and on the brief).

PER CURIAM

Defendant Gary Maugeri and Frank DeCaro were indicted for conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; first-degree robbery, N.J.S.A. 2C:15-1; unlawful possession of a knife, N.J.S.A. 2C:39-5d; possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. DeCaro, who was also charged with eluding, N.J.S.A. 2C:29-2b, pled guilty to that charge and testified against defendant. Following a jury trial and the dismissal of the gun charges, defendant was found guilty on all the remaining counts. The court merged the conspiracy count with the armed robbery count, imposing for that crime a second-degree term of seven years with an 85% parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a) and (b). The court also merged the unlawful possession count with the possession with an unlawful purpose count, imposing for that crime a concurrent four-year sentence. Defendant appeals, and we affirm.

DeCaro testified to his and defendant's planning and committing the armed robbery of the PNC Bank at 1933 Bordentown Avenue in the Parlin section of Sayreville on October 25, 2001. He was the only witness who identified defendant as one of the robbers.

DeCaro and defendant had been friends for about two years. According to DeCaro, defendant told him in mid-October, 2001, while driving in Brooklyn, that he was in debt and had a friend who had "cased out" a bank in New Jersey for him. DeCaro originally declined defendant's request to help him rob the bank because a previous robbery that DeCaro committed resulted in a car chase, which scared him. But only a couple of days later, DeCaro changed his mind and the two began planning the robbery and their disguises. They agreed to commit the robbery on October 25, 2001.

On that day, they met in Brooklyn and drove DeCaro's parents' silver ford Mustang to the target location in Sayreville. Both had disguises: defendant had a navy blue "Yankee hat, baseball . . . batting gloves" and a bandana for his face, and DeCaro had a bandana for his face, a Nike hat and a pair of baseball batting gloves. They also had weapons to control the crowd: DeCaro had a knife, and defendant had a fake gun. En route to the robbery, defendant called a friend for directions to the PNC bank and wrote them down on the back of a business card for Joseph Mirakay, a friend of DeCaro's. When the pair arrived at the bank, they parked in the back parking lot, grabbed their weapons, and put on their disguises.

As they walked through the bank doors, they announced that it was a robbery and ordered everyone to get on the floor. One of the first persons they encountered was Donna Palumbo, who was about to depart the bank after making a daily deposit for her employer. Defendant pointed a gun at her face and told Palumbo, "Get down. This is a bank robbery." Palumbo complied and lay face-down on the floor with her hands over her head. According to Palumbo, the robber wore "a gray Yankee hat with a Navy blue emblem on it", "a gray sweat shirt, a bandana . . . around his chin" and gloves. She did not know for sure, however, if he had a glove on his left hand because she could not clearly see that hand; he held the gun in his right hand.

DeCaro, armed with a knife, jumped over the counter and repeatedly yelled at one the tellers, Smita Gupte, "give me the f'n money," while defendant urged speed, "Come on. Under ten. Under ten. Make it fast." After DeCaro got the money from Gupte, he approached the head teller, Elizabeth Orozco, demanding that she open the vault. DeCaro took whatever Orozco was able to produce and then screamed for more money. When Gupte opened some of the drawers, DeCaro removed the money until Gupte said there was no more. Defendant and DeCaro then fled the bank and drove off in the Mustang.

Shortly thereafter, Sayreville police and FBI arrived at the bank to investigate. Sayreville patrolman, Scott Poetsch, who had received a description of the getaway car, a silver-colored Mustang, sporty with tail fins and New York license plates, decided to park his patrol car on Route Nine north and wait, assuming the car was headed to New York. About a minute later, a car with two occupants matching the description sped past Poetsch. He pulled out behind them, turned on his overhead lights and ordered the driver to pull over. DeCaro, the driver, accelerated, and Poetsch soon lost sight of the car. Although he did not see the occupants' faces, Poetsch noticed that the passenger had on "a New York Yankees hat" that was "dark blue".

Another Sayreville police officer, Chester Dublin, also spotted the car, but lost sight of it within a short period of time. Although he had a clear view of the occupants, Dublin could only remember that the passenger was wearing a "Yankee hat."

DeCaro managed to enter the New Jersey Turnpike, where he led a number of police cars on a northbound chase, successfully outdistancing them. Eventually, however, DeCaro crashed when he tried to exit the turnpike in Woodbridge, but managed to get the Mustang to a side street. Noticing a nearby tow truck, DeCaro paid the driver $100 to drive the two to the Woodbridge Mall, which was not far from their location. At the mall, the pair bought new clothes and discarded their old clothes. Then, defendant telephoned for a ride, and one of his friends arrived and drove them to Brooklyn.

The next day, the Sayreville police found the Mustang in Woodbridge. It was registered to DeCaro's parents. Among the items found in the car were "two Wilson [athletic] gloves," "one Eastern [athletic] glove", "a blue Nike baseball cap", "a dark blue Yankees hat", a "[r]ed bandana", a bottle that tested positive for defendant's DNA, a grey sweatshirt and Mirakay's business card with directions to the bank handwritten on it.

On October 30, 2001, the police arrested DeCaro for the robbery, and on December 12, 2001, defendant turned himself in to the police.

On appeal, defendant raises the following issues:

I. The State Failed to Prove Defendant-Appellant's Guilt Beyond a Reasonable Doubt.

II. Defendant-Appellant's Federally and State Guaranteed Rights to a Fair Trial Were Violated by the Ineffective Assistance of Counsel; the State's Untimely Disclosure of Brady/Giglio Material and Statutorily Required discovery; and by Deficiencies in the Trial Court's Jury Instructions.

A. Defendant-Appellant's Fair Trial

Rights Were Prejudiced by Uncharged Crimes Testimony Elicited by Defense Counsel.

B. Defendant-Appellant's Rights to a Fair Trial Were Prejudiced by Defense Counsel's Conduct.

C. The State's Discovery Violations Prejudiced Defendant's Right to a Fair Trial.

D. Deficiencies in the Jury Charge Deprived Defendant-Appellant of a Fair Trial.

E. Defendant-Appellant's Federally and State Guaranteed Rights to a Fair Trial Were Violated by Cumulative Error.

We will address these issues in inverse order.

(I)

Defendant contends he was denied a fair trial because of (a) the State's discovery violations; (b) defense counsel's ineffectiveness; and (c) the judge's flawed instructions. We disagree.

(A)

Specifically, defendant contends that he was denied a fair trial, in part, because the State failed to timely provide him with (i) the report and pictures of the photo lineup that the police showed to Palumbo; (ii) FBI agent Betty's fingerprint-analysis notes; and (iii) defendant's cell phone records. Defendant, however, has failed to demonstrate any prejudice, especially in light of the trial court's remedial measures.

Rule 3:13-3(b) provides that the State shall make its discovery available to a defendant "within 14 days of the return or unsealing of the indictment" and that "[d]efense counsel shall obtain . . . the discovery . . . no later than 28 days after the return or unsealing of the indictment." Moreover, Rule 3:13-3(g) imposes on the State a duty to supplement discovery as it is received. It also provides that if either party fails to honor its discovery obligations, the court "may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate." R. 3:13-3(g).

We review a trial court's decision regarding the appropriate remedy for a discovery violation under an abuse of discretion standard. State v. Utsch, 184 N.J. Super. 575, 580 (App. Div. 1982). We will reverse a conviction if the State's discovery violation prejudiced the defendant by denying him a fair trial. State v. Blake, 234 N.J. Super. 166, 172 (App. Div. 1989).

(i)

During a hearing to determine the admissibility of Palumbo's in-court identification of defendant, it was first discovered that Palumbo was not able to identify defendant from a previous photographic array. To remedy the State's failure to produce this information earlier, the prosecutor offered to stipulate that Palumbo was shown a photo lineup, which included a picture of defendant, that she was not able to identify defendant and that the prosecutor would not ask Palumbo to identify defendant in court. Defendant agreed to that stipulation. The court then instructed the jury that the parties had stipulated "that on a prior occasion this witness, Miss Palumbo, was shown a photographic array of six photographs, one of those photographs was of the defendant, Gary Maugeri, and the witness was unable to identify that person from that photo array." Defense counsel cross-examined Palumbo about the array, and the prosecutor, as agreed, did not ask her any questions about it on redirect.

We are satisfied that the remedial measure taken by the trial judge, by which the jury heard only exculpatory evidence, fully protected defendant's right to a fair trial and, in fact, shielded him from potentially highly inculpatory proof. Further, defendant has simply failed to explain how the State's earlier failure to disclose information on the photo lineup disadvantaged his defense, much less prejudiced him.

(ii)

The trial judge also properly remediated the State's failure to produce the notes of its fingerprint expert, FBI analyst Valerie Betty, by striking her testimony that the fingerprints found on a bottle in DeCaro's car matched those of defendant. By way of background, the defense first learned of these notes on Betty's cross-examination. When it was then ascertained from the notes that on three or four prior occasions, Betty found no such match, defense counsel requested a mistrial or, in the alternative, an adjournment. The court denied the request, instead striking the entirety of Betty's testimony and issuing a curative instruction directing the jury to disregard the evidence.

Defendant now argues, as he did on his motion for a mistrial, that "this is the kind of evidence that can't be cured," and that by striking Betty's testimony, he was deprived of the exculpatory portions thereof. Although not explicitly stated, we assume defendant is referring to Betty's testimony that of the 64 items seized from DeCaro's car, only one item had defendant's prints on it. Defendant's contentions are without merit.

As with the photo lineup, the judge effectively remedied the discovery lapse by excluding Betty's highly incriminating testimony, and then issuing a curative instruction directing the jury not to consider it. We presume the jurors followed the court's cautionary instruction. State v. Nelson, 173 N.J. 417, 478 (2002). In any event, the parties had stipulated that defendant's DNA was on the bottle found in DeCaro's vehicle and thus, any residual consideration of evidence that defendant's fingerprints were also on the bottle was, at most, cumulative and redundant, having no greater capacity to harm defendant than the parties' stipulation. As for his claim that the court's remedy deprived him of beneficial proof, defendant has simply failed to demonstrate how any of Betty's testimony was exculpatory.

(iii)

The third discovery lapse defendant complains of concerns his own cell phone records. During trial, the prosecutor gave the defense a copy of defendant's cell phone records and advised that the State intended to introduce them as evidence. The records showed that someone in New Jersey placed calls from defendant's cell phone around the time of the robbery. In fact, the State also produced a statement from defendant in which he said that he was the only person who made calls from his cell phone on the day of the robbery.

The court sustained the defense's objection and, even though they were defendant's own records, excluded them from evidence. Although the court ruled in his favor, defendant nevertheless argues on appeal that the State's failure to produce his cell phone records denied him the ability to investigate and prepare his case, to evaluate the strength of the State's case, and to decide whether to accept a plea offer.

These claims are without support and, like the other discovery contentions, lack merit. As with Palumbo's in-court identification and Betty's fingerprint identification, suppression of defendant's cell phone records removed highly incriminating evidence from the jury's consideration and greatly benefited the defense to the State's obvious disadvantage. Indeed, these records would have demonstrated that defendant was in New Jersey around the time of the robbery and further would have supported DeCaro's testimony that just before the robbery, defendant called a friend and wrote the directions to the bank on Mirakay's card. Thus, as with the other instances, we discern no prejudice to defendant from the State's failure to make timely discovery of his cell phone records and the court's exclusionary remedy assured defendant a fair trial.

(B)

Defendant next contends that he was denied a fair trial because the court failed to properly instruct the jury in three specific instances. First, when DeCaro implicated defendant as his accomplice in other robberies, the court should have re-instructed the jury to disregard that testimony. Second, the court should have instructed the jury that it could not use DeCaro's guilty plea as a basis to find defendant guilty. Third, when the trial court recharged the jury on reasonable doubt, it should have also recharged on the State's burden of proof and on the difference between the preponderance of the evidence standard and the reasonable doubt standard. We disagree with each contention.

Proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290.

In assessing the propriety of the jury charge, we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 317, 324 (2005) (reaffirming State v. Hipplewith, 33 N.J. 300 (1960)). If the defendant did not object to the charge below, his challenge on appeal will not be considered unless the court finds plain error in the charge. Id. at 321.

(i)

The first challenge, concerning the failure to instruct the jury to disregard DeCaro's testimony that implicated defendant as DeCaro's accomplice in other robberies, must be assessed in its proper factual context. On cross-examination, defense counsel asked DeCaro if he had an accomplice when he robbed a bank in Brooklyn on October 11, 2002. DeCaro answered yes; he had an accomplice. Counsel then asked:

And when you were asked by Probation, the pre-sentence report, who you committed that robbery with you didn't tell them, did you?

A I don't believe so.

Q Who did you commit that robbery with?

A You want me to answer that?

Q Yeah.

A Gary.

Counsel then said:

Q You did? You're sure of that? You sure you didn't commit that robbery with Jamie Taggart?

A No.

Q Are you sure?

A Positive.

Q So you're saying to this jury that--do you know an individual by the name of Jamie Taggart?

A Yes.

Q Why is it on 2001, 2002, well, so you're saying that Gary was an accomplice of yours?

A Yes.

Q Did you have one accomplice or more than one accomplice?

A One.

Q That's it? Is that what you say?

A Yes.

Defense counsel then asked DeCaro whether he told the probation officer that he had "several accomplices," and DeCaro answered: "I don't remember." At that point, the prosecutor objected, contending that "when you talk about prior convictions you're supposed to stick to the four corners of the document" and that defense counsel was reading parts of the pre-sentence report into evidence without having provided a copy to the prosecutor.

The court ruled that defense counsel's questioning was "getting far afield of the issues" relevant to the case and "that based upon a [N.J.R.E.] 403 analysis . . . the probative value [was] outweighed by the undue consumption of time, misleading the jury and confusion of the issues". The court allowed defense counsel to "clarify the last question" but directed that he then move on.

Over the prosecutor's objection, the court, at defense counsel's urging, agreed to instruct the jury to disregard DeCaro's testimony as to whom his accomplice was in the other robbery, but also warned counsel: "In the future, [counsel], you clearly solicited that response." The court then instructed the jury as follows:

Ladies and gentlemen, I instruct you that you are to disregard Mr. DeCaro's testimony just previously given when he indicated the involvement of the defendant, Gary Maugeri, in another robbery. You are to disregard that testimony and not to consider it for any purpose. It is not relevant to the issues which are the subject of this trial.

After this instruction was rendered, defense counsel continued cross-examining DeCaro whether he told the probation officer that he had more than one accomplice. Counsel read from the pre-sentence report: "The defendant declined to name any of his accomplices but said each robbery involved him and one other person but not always the same person." DeCaro said that statement accurately reflected what he told the probation officer, but that he in fact had only one accomplice. In an apparent attempt to discredit that testimony counsel asked:

And when you were sentenced and when you pled guilty [in federal court] you refused to give anybody the names of your accomplices, isn't that true?

A Yes.

Q The only time you gave the name of an accomplice was when you were promised something for it, isn't that true?

A They wanted me to mention Gary's name in my sentence in federal court and I didn't want to.

After this testimony, defense counsel did not request another curative instruction.

Defendant now contends that because the last series of questions implicated defendant in robberies besides the October 11, 2002 robbery, the court should have instructed the jury to disregard that testimony also. Because defendant did not raise this challenge below, the court's failure to instruct the jury to disregard DeCaro's testimony that implicated defendant in other robberies would warrant a reversal only if it constituted plain error. R.B., supra, 183 N.J. at 321.

There was no plain error here. First and foremost, the jury was clearly and firmly instructed that they were not to consider DeCaro's testimony about defendant being his accomplice in the October 11, 2002 robbery because it was not relevant to the issues in the case. We assume not only that the jury followed this directive, Nelson, supra, 173 N.J. at 478, but also applied it to the second reference as well since it dealt with the same subject matter of defendant's accomplice status and occurred immediately after the court's cautionary instruction. This assumption is all the more reasonable in light of defense counsel's own apparent belief that reinstruction was unnecessary. Moreover, the obvious point of counsel's last series of questions was to discredit DeCaro by having him admit he previously told a probation officer that he had more than one accomplice. Under the circumstances, the court's failure to instruct the jury to disregard DeCaro's second reference to defendant's accomplice status did not amount to plain error.

(ii)

Defendant's second challenge, which he also failed to raise below, is that the court did not instruct the jury that DeCaro's guilty pleas could not be used as proof of defendant's guilt. Defendant relies solely on State v. Murphy, 376 N.J. Super. 114, 123 (App. Div. 2005); however, we find that case distinguishable. There, the trial court had bolstered the co-defendant's credibility "when he [the judge] advised the jury that a guilty plea could not be accepted unless the judge was satisfied that the person entering the plea was, in fact, guilty." Ibid. We, therefore, required the trial judge, in addition to charging that the co-defendant's guilty plea is only relevant to credibility, to also advise the jury that the co-defendant's guilty plea was not proof of the defendant's guilt. Ibid. Here, of course, unlike Murphy, the trial judge's instruction did not bolster DeCaro's credibility and there was other proof, in addition to his testimony, of defendant's guilt. As such, we do not consider Murphy, a case decided one year after the trial in this matter, dispositive.

(iii)

The final challenge to the court's jury instruction is that it failed to recharge on the State's burden of proof and the difference between the reasonable-doubt and preponderance-of-the-evidence standards. This claim is also without merit.

After deliberating for only a few hours, the jury told the court that it could not reach "a unanimous decision and require[d] guidance . . . ." As it was the end of the day, the court reinstructed the jury that the verdict must be unanimous and then dismissed the jury with an instruction to continue deliberating the next day.

Upon returning to deliberate the next day, the jury asked to hear certain evidence again and for "any written documentation to further clarify reasonable doubt . . .?" In response, defense counsel requested the court to recharge on reasonable doubt and the State's burden of proof. The court ruled that it would recharge on reasonable doubt only, as the jury had "not indicated the need for any clarification as to the burden of proof which is replete through the entire charge." The court then read to the jury the model charge on reasonable doubt, with the exception of the first two paragraphs of the model charge dealing with burden of proof.

On appeal, defendant contends that the jury's inability to reach a unanimous verdict reflected its uncertainty about the burden of proof. The record, however, offers no support for defendant's speculative assumption. The jury expressed no uncertainty about the burden of proof and its note simply asked for a clarification of the reasonable doubt standard, which the court properly provided. We discern no error in the court's approach.

(C)

Defendant next contends that his counsel was ineffective because counsel (1) elicited from DeCaro that defendant robbed other banks with DeCaro; (2) elicited from Dr. Michael Lacqua that he treated defendant for a gunshot wound to his hand; (3) failed to call witnesses on defendant's behalf or in support of his defense; (4) engaged in shouting matches with the court and prosecutor; (5) filed a motion to suppress evidence on the day before trial; and (6) waited until jury selection to request permission to interview DeCaro and to obtain from the prosecutor the contact information of the FBI agent who examined defendant's and DeCaro's handwriting samples.

To establish a prima facie case of ineffective assistance of counsel, a defendant must establish that the evidence, viewed in a light most favorable to the defendant, shows a reasonable likelihood of success under the Strickland two-prong test. State v. Fisher, 156 N.J. 494, 499 (1998) (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). That test requires the defendant to show that (1) trial counsel's conduct fell below an objective standard of reasonableness, and (2) the conduct prejudiced the defense. Id. at 499-500.

In assessing whether the defendant has established the first prong, a court examines the trial counsel's conduct in relation to "prevailing professional norms." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. It begins with "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance'" and makes "'every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" Fisher, supra, 156 N.J. at 500 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694).

The second prong of the Strickland test can be established in one of two ways. State v. Allah, 170 N.J 269, 283-84 (2002). First, the defendant can show that "counsel's deficient performance deprived the defendant of 'a fair trial,' that is, 'a trial whose result is reliable . . . ." Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Or, the defendant can show a reasonable probability that "but for counsel's deficiency, the outcome would have been different." Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Because ineffective assistance of counsel claims usually require evidence outside the record, they "are particularly suited for post-conviction review . . . ." State v. Preciose, 129 N.J. 451, 460 (1992). In such cases, we decline to address the claim on direct appeal and "preserve[] [i]t for post-conviction relief . . . ." State v. Jackson, 278 N.J. Super. 69, 74 (App. Div. 1994), certif. denied, 141 N.J. 95 (1995).

Here, the claim of ineffective assistance of trial counsel is reliant on evidence outside the record on appeal and must, therefore, await post-conviction review. Defendant's challenges relating to counsel's decisions on the manner of questioning DeCaro and Dr. Lacqua, on whom to call as witnesses, and how to conduct himself during trial, all implicate trial strategy and require proof outside the record to determine whether Strickland's two prong test has been satisfied. Moreover, as to counsel's failure to timely file a motion to suppress, defendant must establish, in addition to the Strickland test, that his suppression motion has merit. Fisher, supra, 156 N.J. at 501. Consequently, defendant's ineffective assistance of counsel claim must await post-conviction review.

II

Defendant next contends that the court erred in denying his post-verdict motion for a judgment of acquittal, Rule 3:18-2, or, in the alternative, to set aside the verdict as against the weight of the evidence, Rule 3:20-1. We reject this argument.

In considering a motion for a judgment of acquittal

"[t]he trial judge must decide whether the evidence is sufficient to warrant a conviction. More specifically, the trial judge must determine whether the evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt. On such a motion the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State."

[State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 341 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)).]

In considering a verdict against the weight of the evidence challenge, the court must "determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982). That the court may have reached a result different from the jury's is of no moment, as

[a]ppellate intervention is warranted only to correct an "injustice resulting from a plain and obvious failure of the jury to perform its function." Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced.

[State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (quoting State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985)), certif. denied, 134 N.J. 476 (1993).]

Governed by either standard, defendant is not entitled to the relief requested. Simply stated, the worth and credibility of the proofs presented was for the jury to assess. The jury obviously credited the State's version and there is no reason to interfere with that decision.

The inconsistencies in DeCaro's testimony pointed out by defendant are not, either singly or cumulatively, so implausible to render the evidence unworthy of belief as a matter of law. See State v. Godfrey, 131 N.J. Super. 168, 177 (App. Div. 1974), aff'd, 67 N.J. 267 (1975) (finding incredible as a matter of law a detective's testimony that after the defendant took a polygraph test that revealed that he was the shooter, the police let him leave the police station). On the contrary, the inconsistencies cited by defendant in this case relate to events that occurred after the robbery and not to the robbery itself. Indeed, DeCaro remained steadfast in identifying defendant as his accomplice.

By the same token, we fail to see, as defendant suggests, how other evidence exculpates him. To be sure, Dr. Lacqua testified that defendant had a cast on his left hand, yet Palumbo testified that the robber held a gun in his right hand. And it is far from clear from the record that Mirakay matched the description of the robber that Palumbo gave since the only similarity appears to be eye color; both defendant's height and weight accord with the physical characteristics provided by the eyewitness. In a word, the evidence supports defendant's conviction and no injustice occurred here.

Affirmed.

 

Although Palumbo identified defendant during a hearing outside the jury's presence, she was not allowed to identify defendant before the jury in order to remedy the State's failure to earlier disclose that the witness did not identify defendant at a previous photo lineup.

On direct examination, DeCaro testified that he had pled guilty in federal court to five other robberies, including the October 11, 2002 Brooklyn robbery.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984).

The court applies this standard whether the defendant makes the motion at the close of the State's case or after a jury returns a guilty verdict. State v. Palacio, 111 N.J. 543, 550 (1988).

(continued)

(continued)

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A-2350-04T2

August 11, 2006