STATE OF NEW JERSEY v. ANTHONY MCCOY IRBY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1359-08T41359-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

ANTHONY MCCOY IRBY,

Defendant-Appellant.

__________________________________

 

Submitted: March 10, 2010 - Decided:

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-06-0968.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert H. Corrado, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant Anthony McCoy Irby guilty of second degree robbery. At sentencing, the judge granted the State's motion for a persistent offender extended term, N.J.S.A. 2C:44-3a, and imposed a twelve-year period of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, parole ineligibility term.

The conviction arises from an incident at an A & P Supermarket in Fort Lee. On March 2, 2007, the manager observed defendant moving a metal sign that blocked the liquor aisle. The manager recognized defendant from a prior incident in which defendant attempted to shoplift two bottles of alcohol. On the morning of March 2, the manager observed defendant walking quickly from the liquor aisle carrying two plastic bags.

As defendant walked towards the exit, the manager confronted him. According to the manager, he stepped in front of defendant, at which time he observed two bottles of Chivas Regal scotch whiskey in the plastic bags. The manager asked defendant if he had something that belonged to the store. Defendant responded by throwing the bags. The manager grabbed defendant, who punched the manager in the face, and then fled the store.

Defendant testified at trial. He acknowledged that he was a thief and only intended to steal two bottles of scotch. He insisted he would never have hit the manager and, in fact, conducted himself in such a manner as to avoid physical contact with the manager. The guilty verdict demonstrates that the jury did not find defendant credible.

On appeal, defendant raises the following arguments:

POINT I

THE WEIGHT OF THE EVIDENCE DID NOT SUPPORT THE VERDICT, THEREFORE THE DEFENDANT IS ENTITLED TO A NEW TRIAL.

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT.

We have thoroughly reviewed the record in light of the arguments presented by defendant and conclude that none of the arguments advanced by defendant are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed.

 

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A-1359-08T4

March 25, 2010