STATE OF NEW JERSEY v. AARON OLIVARES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6172-04T46172-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AARON OLIVARES,

Defendant-Appellant.

_____________________________________________________________

 

Submitted October 4, 2006 - Decided October 23, 2006

Before Judges Coburn and R.B. Coleman.

On appeal from the Superior Court of New Jersey,

Law Division, Hudson County, I-04-04-0664.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Carolyn V. Bostic, Designated

Counsel, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent (Karen Kazanchy,

Assistant Prosecutor, on the brief).

PER CURIAM

A jury found defendant guilty of the lesser included offense of second degree robbery, N.J.S.A. 2C:15-1, and the judge imprisoned defendant for seven years with the period of parole ineligibility required by the NERA, N.J.S.A. 2C:43:7.2.

On appeal, defendant offers the following arguments:

POINT I

DEFENDANT'S ROBBERY CONVICTION MUST BE REVERSED BECAUSE THE JURY'S GUILTY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO THE ROBBERY COUNT BECAUSE THE STATE FAILED TO PROVE THAT DEFENDANT POSSESSED THE REQUISITE INTENT BEYOND A REASONABLE DOUBT.

POINT III

DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2). Nonetheless, we add the following comments as to defendant's first point.

In essence, the evidence showed that defendant and his co-defendant walked up to the victim on the street. While the co-defendant threatened the victim with a box cutter, the defendant went through the victim's pockets and struggled with the victim to remove a ring from his finger. The defendant had the smell of alcohol and his breath and was somewhat unsteady on his feet, but perfectly capable of running away after the robbery.

Since defendant did not move for a new trial below, his challenge to the verdict as against the weight of the evidence is precluded. State v. Baker, 303 N.J. Super. 411, 414-15 (App. Div.), certif. denied, 151 N.J. 470 (1997). Of course, if the interests of justice warranted it, we could intervene despite the absence of a motion in the trial court. State v. Pickett, 241 N.J. Super. 259, 266 (App. Div. 1990). Here the argument is that defendant's state of intoxication prevented him from forming the intent to commit robbery. But the only evidence of intoxication was that the victim and a cop smelled alcohol on defendant's breath and that the defendant appeared unstable on his feet. That evidence failed to meet the requirements of law. State v. Cameron, 104 N.J. 42, 54 (1986). We note that the judge fully charged the jury on the intoxication defense, and the jury was satisfied that defendant was able to form the intent to steal.

Affirmed.

 

(continued)

(continued)

3

A-6172-04T4

October 23, 2006