STATE OF NEW JERSEY v. WILLIAM RUIZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4786-05T44786-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM RUIZ,

Defendant-Appellant.

_________________________________

 

Submitted March 28, 2007 - Decided April 30, 2007

Before Judges Lefelt and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Morris County, Indictment No.

05-03-0355.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Sylvia Orenstein, Assistant Deputy

Public Defender, of counsel and on the brief).

Michael M. Rubbinaccio, Morris County Prosecutor,

attorney for respondent (Joseph Connor, Jr.,

Assistant Prosecutor, on the brief).

PER CURIAM

Following a trial by jury, defendant William Ruiz was convicted of second-degree robbery, N.J.S.A. 2C:15-1a(2) (Count I); third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d (Count II); and fourth-degree possession of a weapon, N.J.S.A. 2C:39-5d (Count III). The conviction on Count III was merged into the conviction on Count II, for which defendant received a three-year term. On Count I, the court imposed a concurrent five-year term subject to the 85% parole bar of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.

According to the State's proofs, on the evening of November 9, 2005, after a softball game, teammates James Stanford and Jason Ragel, friends in their late twenties, went to the Dart Inn, a local Dover bar, for beers and shuffleboard. Shortly after midnight, Stanford took out a $100 bill to pay the bar tab and held it in his hand waiting for the bartender to come by. Defendant instead snatched the $100 bill and fled. Stanford pursued him outside but because it was dark he could not identify defendant. Ragel followed Stanford outside.

Once outside, Stanford confronted defendant but defendant refused to give the money back. Stanford and Ragel then followed defendant for about 200 feet up the road as he tried to get away. Appearing drunk, defendant pulled a blue-handled knife and swung it at Stanford, who screamed "knife," alerting Ragel to keep his distance. Defendant then tried to get away, running across the street, through a gas station, and up the block, with Ragel and Stanford in pursuit, yelling at him to stop and give the money back.

Responding to an anonymous caller, Dover police arrived quickly from the station, which was only a block and one-half from the bar. Officer Joseph Bostrom frisked defendant and found a small blue knife in his pocket. Defendant was arrested and taken to headquarters, where he was handcuffed to a railing, leaving one hand free. Another officer, Patrolman Michael Thiel, saw defendant throw an item to the floor and cover it with his foot. It was a $100 bill.

In challenging the judgment of conviction, defendant raises the following issues for our consideration:

I. BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT IT WAS THE DEFENDANT WHO TOOK THE MONEY FROM THE VICTIM'S HAND, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE DEFENDANT SHOULD BE GRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE. (Not Raised Below).

II. BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT A ROBBERY HAD BEEN COMMITTED, THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL. U.S. Const., Amend. XIV; N.J. Const. (1947), Art. 1, pars. 1, 9, 10.

III. DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE, ALTHOUGH THE TRIAL COURT PROPERLY EXCUSED TWO OF THE SITTING JURORS, IT FAILED SUFFICIENTLY TO INQUIRE WHETHER THE REMAINING JURORS WERE INFLUENCED BY THE SECOND JUROR WHO WAS EXCUSED. U.S. Const., Amend. VI; N.J. Const. (1947), Art. 1, par. 9 (Not Raised Below).

IV. DEFENDANT NEVER CLEARLY AND UNEQUIVOCALLY WAIVED HIS CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF. U.S. Const., Amends. VI, XIV; N.J. Const. (1947), Art. 1, pars. 1, 10.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.

(i)

Defendant failed to move for a new trial and therefore the issue whether the jury verdict is against the weight of the evidence is not cognizable on appeal. R. 2:10-1; State v. Froland, 378 N.J. Super. 20, 37 (App. Div. 2005), certif. denied, 187 N.J. 82 (2006); State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993). But even if it were, the circumstantial evidence is compelling. State v. Dancyger, 29 N.J. 76, 84, cert. denied, 360 U.S. 903, 79 S. Ct. 1286, 3 L. Ed. 2d 1255 (1959). Shortly after the occurrence, defendant was found in possession of a blue-handled knife, the same type used to menace Stanford, as described by Ragel. Defendant was also in possession of a $100 bill, which he tried to secretly discard in a manner suggestive of consciousness of guilt. Given these facts, there was no miscarriage of justice in this case. R. 3:20-1; Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

(ii)

The evidence also supports the "use of force" element of the robbery offense. N.J.S.A. 2C:15-1a(1). An actor commits a robbery if he inflicts bodily injury or uses force during the course of committing a theft. Ibid. An act is deemed in the course of committing a theft if it occurs during the "immediate flight" from the theft. N.J.S.A. 2C:15-1a. An act occurs during immediate flight if it occurs before the actor has reached a point of temporary safety or becomes subject to complete custody. State v. Mirault, 92 N.J. 492, 500-01 (1983).

Here, the evidence permits a finding that defendant brandished a knife during his confrontation with Stanford immediately after he fled the bar from where he stole the $100 bill, but before he reached a place of temporary safety or was placed in official custody. Moreover, the act of brandishing and swinging the knife in such close proximity to his victim amply supports the element of robbery of "threaten[ing] another with or purposely put[ting] him in fear of immediate bodily injury." N.J.S.A. 2C:15-1a(2); State v. Farrad, 164 N.J. 247, 259 (2000). Indeed, after Stanford screamed "knife," both he and Ragel kept their distance, obviously fearful of getting stabbed or cut.

(iii)

Contrary to defendant's next argument, which he raises for the first time on appeal as plain error, Rule 2:10-2, there was no jury taint. Briefly, by way of background, when Ragel testified, juror no. 9 realized he recognized the witness but did not know his name. Consequently, the judge interviewed juror no. 9 in the presence of counsel. The juror indicated that he told only juror no. 6 that he knew one of the State's witnesses, but did not further venture his unfavorable opinion of him as an annoying drunk. Juror no. 6 confirmed this in his interview with the judge and also stated that he did not tell any other juror that juror no. 9 recognized Ragel. Because juror no. 9 was unable to remain fair and impartial, the judge excused him.

The judge's voir dire procedure was proper. Clearly, a trial court must investigate possible jury taint if there is a "realistic possibility" that the extraneous information could prejudice defendant. State v. Papasavvas, 163 N.J. 565, 618 (2000) (quoting State v. Bey, 112 N.J. 45, 86-87 (1988)). Here, the judge's voir dire adequately determined that the extraneous information was limited to juror no. 9 and had not been communicated to any other juror. Having satisfied himself from questioning the two jurors involved that juror no. 9 was the sole juror privy to the extraneous information, the judge was not further required to interview the other jurors. Moreover, there was no realistic possibility of prejudice to defendant since juror no. 9's unfavorable opinion of one of the State's principal witnesses could only have harmed the State, not defendant.

(iv)

Defendant finally contends he never unequivocally waived his right to testify on the record. On this score, he points to the court's two-fold inquiry: "is it your election not to testify at this point or would you like to testify," to which defendant answered, supposedly ambiguously: "yes, it is." However, when the entire colloquy is considered in context, it is apparent the judge properly construed defendant's answer as a waiver of his right to testify.

Furthermore, it is defense counsel's duty to inform defendant of his right to testify. State v. Savage, 120 N.J. 594, 630-31 (1990). The trial court need not obtain an on-the-record waiver, State v. Moore, 122 N.J. 420, 460-61 (1991), so long as it is satisfied counsel advised the defendant of the right to testify. Savage, supra, 120 N.J. at 631.

Here, the trial judge afforded defense counsel a recess to discuss with his client whether or not to testify. When trial resumed, counsel stated that defendant chose not to testify and wanted the jury told that his decision cannot be used against him. Defendant voiced no disagreement with this representation of counsel. Indeed, no claim is made that counsel was ineffective in this regard. Under the circumstances, we are satisfied that the on-the-record colloquy demonstrates that defendant clearly and unequivocally waived his right to testify.

Affirmed.

 

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A-4786-05T4

April 30, 2007