STATE OF NEW JERSEY v. ROBERT W. STAUFFER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3856-05T43856-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT W. STAUFFER,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 3, 2007 - Decided

Before Judges Gilroy and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-05-0686.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael A. D'Anton, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert W. Stauffer appeals from his January 26, 2006 conviction on one count of second-degree robbery, N.J.S.A. 2C:15-1, and one count of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The judge sentenced defendant to a seven-year term of imprisonment on the second-degree robbery, subject to an eighty-five percent NERA parole ineligibility term. See N.J.S.A. 2C:43-7.2. The judge merged the third-degree unlawful possession of a weapon conviction with the robbery sentence and therefore imposed no sentence on that charge.

On appeal, defendant presents the following arguments for our consideration:

I. THE STATE FAILED TO PROVE THAT THE DEFENDANT COMMITTED THE OFFENSE OF ROBBERY AND POSSESSION OF A WEAPON FOR UNLAWFUL PURPOSES BEYOND A REASONABLE DOUBT, THUS, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below)

II. THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE AND THE TRIAL COURT FAILED TO CONSIDER MITIGATING FACTORS ON THE DEFENDANT'S BEHALF.

We affirm.

I.

John Austin was the manager of a Sunoco gas station on the New Jersey Turnpike. He testified that about three weeks before the robbery, on January 6, 2005, defendant came to the gas station and asked him for a job application. Although Austin told defendant to wait in the garage, defendant followed him into the manager's office. By doing so, defendant was able to see where the safe was located.

On February 1, 2005, between 1:00 and 1:30 a.m., Brian Winch was working there as a gas station attendant when a man, later identified as defendant, accosted him. Winch was unable to see his assailant's face because the man was wearing a ski mask, but Winch was able to see the assailant pull out an object that had a "black handle and a silver part to it." When the assailant pushed the object against Winch, he said "I'm robbing you, mother f---er." After sticking the weapon into Winch's abdomen, the man pushed Winch into the back office where the safe was located and demanded that Winch open the safe and remove the money. As soon as Winch handed the man the cash box, he took it and fled. Once the man was gone, Winch immediately called 9-1-1 and reported the robbery.

State Trooper Mark Friedenberger responded to the 9-1-1 call. Friedenberger met with Winch and fellow employees Marvin Lozada and Charlie Burns. Although each witness was interviewed separately, all described the robber as being six feet tall with green eyes, wearing a black ski mask, grey gloves, a black hooded sweatshirt and a jacket. Winch also said the robber carried a green backpack. Based on those descriptions, John Sandor, a New Jersey Turnpike Authority employee who was in the service area when the police arrived, set out in his own patrol car to look for a male in the area.

About a mile from the Sunoco station, Sandor saw a man who was wearing a black jacket, white hooded sweatshirt, khaki pants and holding a backpack, walk into a convenience store parking lot. The man entered the convenience store and spoke to the manager Frank Murgitroid, who knew defendant because defendant frequented the store. Murgitroid testified that he had seen defendant enter his store three hours earlier at 11:00 p.m., and at that time defendant was wearing a white hooded sweatshirt and was carrying his green backpack. When Murgitroid noticed defendant in the store again at approximately 2:00 a.m., defendant was acting scared and saying that police were all over the place. Defendant was also out of breath.

Woodbridge Township Police Officer Craig Polhamus testified that he responded to the Sunoco gas station to assist the State Police, and was then dispatched to the convenience store. When Polhamus arrived there, he saw defendant, who was holding his green backpack. Inside the backpack was a screwdriver, a jacket and a dark baseball cap. When Polhamus asked defendant about his whereabouts that night, defendant provided evasive answers. Defendant asked Murgitroid to tell the officer that defendant had been in the store the entire night, but Murgitroid refused to say that. Police arrested defendant and brought him to a nearby State Police station, where he was interviewed by a detective. During the interview, which was not recorded, defendant told Detective Koenig some details about the robbery, but dismissively stated that it was "no big deal" because nobody was hurt. Defendant asked Koenig how anyone could identify him when no one saw his face. The detective responded by telling defendant that the witnesses had seen his green eyes. During the unrecorded statement, defendant proceeded to admit that he ran down a service road and disposed of the cash that he took during the robbery by nailing the money underneath a foot bridge. Defendant then changed his story, claiming he buried the cash in the snow near a bus station.

Co-defendant Elizabeth Karol, who was defendant's fiancée at the time of the robbery, was brought to the State Police station where she gave three statements. In her first two statements, she claimed to know nothing about the robbery, but in her third statement admitted that she and defendant planned the robbery and carried it out the morning of February 1, 2005. She told the detectives where the money was located, but the money was never found. She testified that two days prior to committing the actual robbery, she and defendant performed a practice run of the robbery, during which time she took him to the area of the Sunoco station and later to the bridge where he planned to hide the money. She also testified that on the day of the robbery, defendant was wearing khaki pants, black sneakers, a black shirt, an off-white sweatshirt and a black hooded sweatshirt. She also said that defendant was carrying his green book bag.

The defense rested without calling any witnesses. The jury deliberated and reached the verdict we have described.

II.

In Point I, defendant argues the jury's verdict was against the weight of the evidence. Without having moved for a new trial under Rule 3:20-1, defendant, for the first time, now argues that the State failed to prove his guilt beyond a reasonable doubt. We reject that claim for two reasons. First, defendant never moved for a new trial under Rule 3:20-1 on the ground that the verdict was against the weight of the evidence. Accordingly, he is barred from raising this claim on appeal. R. 2:10-1. Rule 2:10-1 provides:

Motion for New Trial as Prerequisite for Jury Verdict Review; Standard of Review

In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.

By not raising this issue below, defendant deprived the trial judge of the opportunity to evaluate defendant's claim that the jury's verdict was not supported by the evidence. Because defendant failed to file a motion for a new trial before the trial court, he is now barred from challenging the jury's verdict on appeal. State v. Froland, 378 N.J. Super. 20, 37 (App. Div. 2005), certif. granted, 187 N.J. 82 (2006).

We nonetheless exercise our discretion, in the interest of justice, to entertain defendant's weight of the evidence argument, even in the absence of a new trial motion. See State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993). "We must sift through the evidence 'to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" Id. at 512. (quoting State v. Carter, 91 N.J. 86, 96 (1982)). "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." Ibid. We find no basis upon which to conclude that there was clear evidence that the jury was mistaken or prejudiced.

In support of his argument in Point I, defendant points to the following matters to establish that the State did not prove guilt beyond a reasonable doubt: testimony that the perpetrator was wearing a black hooded sweatshirt, whereas the sweatshirt defendant was wearing on the night in question was white; Karol's testimony describing where the money was purportedly dropped, even though neither the cash nor the metal box was ever recovered from that location; Detective Koenig's failure to memorialize defendant's statement on an audiotape; the failure by police to compare his sneakers to the footprints police discovered in the snow once they responded to the area where the money was allegedly dropped; and the failure by police to use standard investigative techniques such as a photo array or lineup. Finally, he attacks the credibility of Karol, from whom he was estranged by the time of the trial.

When a court is presented with a defendant's argument that the verdict was against the weight of the evidence, the party opposing the motion is entitled to the benefit of all favorable inferences that a reasonable jury might draw from that testimony. State v. Spivey, 179 N.J. 229, 236 (2004). Moreover, credibility determinations are within the unique function of the jury. Only when it appears from the evidence that the credibility of a witness is so contrary to what the jury should have found can that testimony be deemed unreliable and the verdict overturned. State v. Haines, 20 N.J. 438, 446-47 (1956).

When these principles are applied, it is clear that defendant's challenge to the jury's verdict should be rejected. His arguments focus on the issue of identification and of bias on the part of co-defendant Karol. The jury heard ample evidence from which it could have concluded that defendant was the person who jabbed a silver object into Winch's abdomen and demanded that he produce the cash. Although there were some discrepancies in various accounts of what the perpetrator was wearing, our common experience informs us that these relatively trivial discrepancies are not unusual in criminal trials.

The jury had the opportunity to hear and evaluate those discrepancies, and to determine the credibility of the witnesses the State presented. None of defendant's arguments, either individually or collectively, persuade us that the jury's verdict was an "injustice resulting from a plain and obvious failure of the jury to perform its function." Smith, supra, 262 N.J. Super. at 512. Accordingly, we reject defendant's argument that the jury's verdict was against the weight of the evidence and that he is entitled a new trial.

III.

In Point II, defendant argues that the sentence imposed by Judge DeVesa was excessive, and that Judge DeVesa erred by failing to consider mitigating factors that were present. We have carefully considered defendant's arguments in light of the record and applicable law, and conclude that those arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments. The sentence Judge DeVesa imposed was at the middle of the second-degree range, even though defendant had a prior conviction as an adult for two counts of third-degree burglary. In addition, defendant was adjudicated delinquent as a juvenile on charges of shoplifting and harassment in two separate incidents.

We also reject defendant's argument that Judge DeVesa should have found mitigating factors N.J.S.A. 2C:44-1(b)(4), (8) and (10). We disagree with defendant that there were substantial grounds tending to excuse or justify his conduct though failing to establish a defense, N.J.S.A. 2C:44-1(b)(4); his conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8); and he was particularly likely to respond affirmatively to probationary treatment, N.J.S.A. 2C:44-1(b)(10). Although the pre-sentence report that was prepared for use at sentencing specifies that defendant was on a suicide watch in the county jail in February 2005 because of a suicide attempt two months earlier, and that he was on medication for attention deficit disorder until 2004, we are not prepared to say these entries in the pre-sentence report were sufficient to have required the judge to find any of the three mitigating factors that defendant has presented. This is especially so in light of defendant's failure to have raised any of those mitigating factors at the time of sentencing. Indeed, the record shows that defense counsel acknowledged "[t]here really are no mitigating factors to speak of."

We will only disturb a sentence if defendant demonstrates "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). Defendant's contentions fall woefully short of satisfying that standard. Accordingly, we reject the sentencing argument defendant presents in Point II.

Affirmed.

Defendant entered a negotiated plea of guilty to a third-degree burglary charge that had been severed from the indictment immediately before trial. The judge sentenced him to a term of four years imprisonment on that burglary charge, concurrent to the sentence on the second-degree robbery.

(continued)

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A-3856-05T4

December 21, 2007