STATE OF NEW JERSEY v. LEWIS WALKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2479-06T42479-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEWIS WALKER,

Defendant-Appellant.

__________________________________________________________

 

Submitted January 12, 2009 - Decided

Before Judges Carchman, R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-08-1097.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Lewis Walker appeals his criminal conviction for robbery, burglary, attempted theft, and simple assault. After a careful review of the record, we find defendant's arguments unavailing. We affirm.

On the evening of November 26, 2004, defendant hit a parked car in a pizzeria parking lot and fled the scene in his car. He next entered a video store, only an eighth of a mile down the road, and frightened employees and patrons with his erratic behavior and profane language. When defendant exited the store, the employees summoned the police. In the video store parking lot, defendant entered the driver-side of an idling vehicle and attempted to put it in gear. An elderly passenger, Carmen Lazo, was in the passenger seat waiting for her son. Defendant began beating the woman and tried to take her pocketbook. The woman opened the car door and fell to the blacktop. Defendant exited the vehicle, walked to the passenger side, and continued to beat the woman where she fell. Upon exiting the video store, the woman's son, Alex Jurado, observed his mother being attacked and went to her aid. He, in turn, was attacked by defendant who then fled the scene. Defendant was subsequently apprehended by police after a lengthy pursuit. During his arrest, defendant admitted to assaulting the son. Also, a signal lamp missing from defendant's car matched a signal lamp found in the pizzeria parking lot.

Defendant was tried before Judge Jane B. Cantor and a jury. The jury returned a guilty verdict on robbery, N.J.S.A. 2C:15-1; burglary, N.J.S.A. 2C:18-2; attempted theft N.J.S.A. 2C:5-1, N.J.S.A. 2C:20-3, and simple assault, N.J.S.A. 2C:12-1a. When defendant was sentenced, the judge merged the burglary and simple assault charges into the robbery conviction, and imposed a term of imprisonment of eight years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. For the attempted theft conviction, defendant was sentenced to a five-year term to run concurrently with the sentence for the robbery count.

On appeal, defendant raises the following arguments:

POINT ONE: THE TRIAL COURT IMPROPERLY ADMITTED OTHER CRIME EVIDENCE OF THE MOTOR VEHICLE OFFENSES WHERE THE STATE DID NOT PROVE CLEARLY AND CONVINCINGLY THAT THE DEFENDANT COMMITTED THE VIOLATIONS AND WHERE THE COURT DID NOT INSTRUCT THE JURY ON THE PURPOSE FOR WHICH THE VIOLATIONS MAY BE USED.

POINT TWO: UNDER RULE 609 THE TRIAL COURT IS REQUIRED TO BALANCE THE INTERESTS OF THE PARTIES BEYOND AN EXAMINATION OF REMOTENESS AND SIMILARITY IN DETERMINING WHETHER TO ADMIT THE PRIOR CRIME EVIDENCE.

POINT THREE: THE TRIAL COURT'S CHARGE WAS MISLEADING WHERE THE JURY WAS CONFUSED ABOUT THE OBJECT THE STATE ACCUSED THE DEFENDANT OF ATTEMPTING TO UNLAWFULLY TAKE AND WHERE THE COURT, IN ATTEMPTING TO EXPLAIN THE CONFUSION, DID NOT EXPRESS A PLAIN AND CLEAR EXPOSITION OF THE ISSUE.

POINT FOUR: WHERE THE STATE DID NOT PRESENT ANY EVIDENCE THAT THE PERPETRATOR WHO ENTERED AN UNLOCKED SUV, WHOSE ENGINE WAS RUNNING, DID NOT SHIFT ITS GEARS AND EXITED THE VEHICLE WHEN ITS PASSENGER EXITED, IT FAILED TO SHOW THAT A SUBSTANTIAL STEP TO UNLAWFULLY TAKE THE SUV WAS PURPOSELY TAKEN.

POINT FIVE: THE JURY'S GUILTY VERDICT AS TO THE SECOND DEGREE BURGLARY SHOULD BE REVERSED WHERE IT WAS NOT CLEAR THAT THE ATTEMPT TO INFLICT BODILY INJURY OCCURRED IN THE COURSE OF STEALING THE SUV.

POINT SIX: THE PROSECUTOR'S SUMMATION WAS HIGHLY INFLAMMATORY WHERE HE ATTACKED WITHOUT REASON DEFENSE COUNSEL'S CHARACTER AND WHERE HIS COMMENTS ON SEVERAL OCCASIONS STRAYED FROM THE EVIDENCE.

POINT SEVEN: THE TRIAL COURT DID NOT CONSIDER THE DEFENDANT'S SUBSTANCE ABUSE DURING THE NIGHT IN QUESTION OR HIS COOPERATION WITH THE LAW ENFORCEMENT OFFICERS AS MITIGATING FACTORS.

We find defendant's claims in points three, five, and seven lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). As to the claimed mitigation by reason of substance abuse, see State v. Ghertler, 114 N.J. 383, 390 (1989), where the Court remarked "[w]e are not about to adopt the proposition that one who demonstrates that the motive for unlawfully acquiring the funds of another was to purchase cocaine has satisfied the mitigating factor of N.J.S.A. 2C:1b(4), namely, 'substantial grounds tending to excuse or justify [one's] conduct, though failing to establish a defense.'" We discuss the remaining claims in turn.

Defendant contends, for the first time, that the hit-and-run incident in the pizzeria parking lot was a separate crime, and thus, the motor vehicle summonses were improperly admitted into evidence. We will ordinarily not entertain matters or issues not properly raised in the trial below when an opportunity to do so existed, unless the matters raised on appeal "'go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)); Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2009). Nevertheless, we briefly consider the issue. State v. Matthews, 398 N.J. Super. 551, 560 (App. Div. 2008).

The brief time-span and close proximity of defendant's criminal conduct is evidence which "establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995) (citing State v. Louf, 64 N.J. 172, 178 (1973)). We have held that N.J.R.E. 404(b) will not apply when the "other crimes" evidence "is part of the total criminal conduct that occurred during the incident in question . . . ." Id. (citing State v. Ortiz, 253 N.J. Super. 239, 243 (App. Div.), certif. denied, 130 N.J. 6 (1992)). That rationale is plainly applicable here.

We find substantial evidence in the record to support the trial court's determination that the hit-and-run in the pizzeria parking lot was part of a continuing course of conduct and not a separate crime. Cherry, supra, 289 N.J. Super. at 522. Thus, the summonses were properly admitted into evidence.

Defendant next contends that the trial court's ruling to admit defendant's prior convictions into evidence was improper. Our Supreme Court has instructed that "[a] jury has a right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen." State v. Sands, 76 N.J. 127, 145 (1978). Hence, a trial judge may, in the exercise of sound discretion, admit evidence of past criminal convictions to affect the credibility of a criminal defendant unless the judge determines the evidence will create substantial prejudice to defendant. Ibid. A defendant with a substantial criminal record has a heavy burden in attempting to exclude evidence of his disdain for our laws. Ibid. Here, defendant has failed to show substantial prejudice, and we are satisfied the trial judge exercised sound discretion in admitting the sanitized versions of defendant's prior convictions.

Defendant next contends that the State did not prove he had taken a substantial step toward the attempted car theft. We find defendant's entry of the vehicle, moving both the steering wheel and his feet in the foot well area sufficient to permit the jury to conclude that a substantial step had been taken in attempted car theft. This factual determination was within the province of the jury.

Defendant next alleges prosecutorial misconduct through disparaging remarks and comments made by the prosecutor which were not supported by the evidence. Upon review of a prosecutor's remarks, we are cognizant that "[c]riminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall." State v. Timmendequas, 161 N.J. 515, 587 (1999). The State is entitled to be just as forceful and graphic in its summation as the defendant. Ibid. Furthermore, we will not reverse a criminal conviction on the basis of prosecutorial misconduct "unless the conduct was so egregious that it deprived defendant of a fair trial." State v. W.L., Sr., 292 N.J. Super. 100, 110 (App. Div. 1996) (quoting State v. Ramseur, 106 N.J. 123, 322 (1987)).

We find no inflammatory remarks in the prosecutor's summation. As to the prosecutor's comment concerning the identification by Jurado, the court's curative instruction was sufficient to cure any prejudice that might have been engendered. With regard to the prosecutor's comment regarding testimony at "other proceedings," defendant is mistaken as to what was actually said.

After a careful review of the record, we are satisfied that defendant received a fair trial and a just result. Whether considered separately or in the aggregate, we find no error, much less plain error in the arguments raised here on appeal.

Affirmed.

 

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A-2479-06T4

March 31, 2009