STATE OF NEW JERSEY v. JAMAL SPEIGHTS

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4328-14T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JAMAL SPEIGHTS,

     Defendant-Appellant.
___________________________

              Submitted May 24, 2017 – Decided January 30, 2018

              Before Judges Fuentes and Simonelli.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No.
              14-01-0046.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stephen W. Kirsch, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Grace H. Park, Acting Union County Prosecutor,
              attorney for respondent (Meredith L. Balo,
              Special    Deputy   Attorney    General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

        The opinion of the court was delivered by

FUENTES, P.J.A.D.
     Defendant Jamal Speights was tried before a jury and convicted

on one count of second degree robbery, 
N.J.S.A. 2C:15-1, and

acquitted of fourth degree unlawful possession of prescription

medication legend drug, 
N.J.S.A. 2C:35-10.5(e)(2).             On March 6,

2015, the court sentenced him to a term of eight years imprisonment

with an eighty-five percent period of parole ineligibility and

three years of parole supervision, as mandated by the No Early

Release Act (NERA), 
N.J.S.A. 2C:43-7.2.

     In this appeal, defendant argues the trial court erred when

it denied defense counsel's application to charge the jury on the

offense of receiving stolen property, 
N.J.S.A. 2C:20-7(a), as a

lesser included offense of second degree robbery.           Defendant also

contends    the   court   should    have   disregarded   defense   counsel's

objections and charged the jury on accomplice liability.            Finally,

defendant   argues    the   court   improperly   excluded    evidence    that

showed the police officer who arrested him used excessive force

and needlessly injured him, thereby demonstrating the officer's

bias against him.     We affirm.

     At approximately 1:30 a.m. on July 27, 2013, Plainfield Police

Officers Hans Noriega and Charles Martina were on patrol in a

marked police car on Park Avenue heading toward Seventh Street.

At this point, Officer Noriega saw a man "on his knees . . .

getting assaulted by [a man] . . . I saw . . . throwing punches

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downward."     Noriega also saw defendant "going into the victim's

pockets."    Noriega "yelled out of [his police car] window, 'stop,

police.'"    According to Noriega, "the person who was throwing the

punches downward," whom Noriega later identified as defendant,

looked at the patrol car and began to run as the officers made a

U-turn.     Noriega testified that before defendant started to run,

he saw him "drop[] what appeared to be a pill bottle."              When asked

what caused him to conclude the object defendant discarded was a

pill bottle, Noriega responded: "Because [it was an] orange bottle

with [a] white cap."

     Noriega and Martina chased defendant in their patrol car as

defendant ran north towards Second Street.               They continued to

follow defendant several streets and then doubled-back toward the

direction where the assault occurred.             Martina, who was driving

the patrol car, put the vehicle in reverse and continued chasing

defendant driving backward.          As soon as the patrol car reached

defendant,    Noriega    stepped    out     to   apprehend   him.    However,

defendant again fled.           Noriega chased defendant on foot while

calling for him to stop.            Noriega testified this foot-chase

continued north on Park Avenue until defendant turned right onto

East Second Street and began to head east.

     The     pursuit    ended    when   defendant     reached   a   dumpster.

According to Noriega:

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          I observed he was holding an object in his
          hand and at that point I told him to show me
          his hands so something dropped from his hands.
          And at that point he didn't want to comply so
          I threw a couple of punches towards his facial
          area to get him to comply and once he was on
          the floor I was trying to flip him over so
          that I can put his hands behind his back, put
          him in handcuffs.

          Q. And then were you able to place the suspect
          in handcuffs?

          A. Not until my partner arrived.

          [Emphasis added.]

     Noriega testified that the "object" defendant dropped from

his hand was a black, foldable wallet that contained a sticker of

the Virgin of Guadalupe, and two $100 bills, three $20 bills, and

one $5 bill and "maybe a couple of singles."      As a result of a

search of defendant's person incident to his arrest, Noriega also

found a "black flip phone."   Noriega testified that he never lost

sight of defendant during the entire chase, both while he was in

the passenger seat of the patrol car, and when he pursued him on

foot.

     The police transported the victim to the station where Noriega

interviewed him. The victim gave a brief account of what occurred,

which he characterized as a robbery. He also described the content

of the wallet, including the religious sticker.    The police also

recovered the orange pill bottle Noriega saw defendant discard


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during the foot-chase.      The police took a formal statement from

the victim at the Plainfield Police Station.            In response to

defense   counsel's    questions      on   cross-examination,      Noriega

testified that he wrote in his report that the victim told him

"that five [b]lack males started to attack him[.]"            The police

returned to the victim the wallet, currency, and cellphone they

seized from defendant.      On cross-examination, Noriega testified

he was not aware of guidelines established by the Attorney General

that required police officers to retain evidence seized from a

suspect in connection with the commission of a crime.

     In   his   appellate   brief,   defendant   concedes   that   Officer

Martina's testimony at trial was similar to Noriega's account of

events.   With respect to the assault upon the victim, although

Martina testified he saw "a lot of foot traffic at the time because

there's several bars right in the area," he did not see anybody

else hitting the victim at that time.        Martina also corroborated

Noriega's testimony with respect to defendant fleeing on foot once

he saw the police patrol car.        Martina lost "visual contact" only

after defendant ran into an alley.          Martina gave the following

account of how the event developed:

           Q. And when you pulled up and Officer Noriega
           alerted you to what he was seeing did you see
           anybody else hitting the victim?

           A. No, it was just the victim and the actor.

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           Q. Do you know how long he had been hitting
           him at that time?

           A. No, I do not.

           Q. And approximately how long from the time
           that you initially saw the defendant hitting
           the victim were you able to place him in
           handcuffs?

           A. Three to four minutes.

    After the State rested its case, defendant called only one

witness – Plainfield Police Aide Devon Irving.     In response to

defense counsel's question, Irving testified that police records

show defendant had an open warrant for his arrest at the time he

was transported to the police station to be processed for this

offense.   In her summation to the jury, defense counsel stated:

           You're going to hear about flight, and
           certainly [the prosecutor] will say to you
           that Mr. Speights ran because he - - that was
           evidence of his guilt, that that's some
           consciousness of guilt, that he ran from the
           police. Well, we heard today from Ms. Irving
           that there's another reason that Mr. Speights
           may have ran and that is because he had an
           open bench warrant on unrelated charges. But
           keep that in mind.

    Against his factual backdrop, defendant now appeals raising

the following arguments.

           POINT I

           THE DEFENSE REQUEST TO CHARGE THE JURY ON
           RECEIVING STOLEN PROPERTY AS A LESSER OFFENSE
           SHOULD HAVE BEEN GRANTED; ALTERNATIVELY, THE


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            JUDGE SHOULD NOT HAVE INSTRUCTED THE JURY ON
            ACCOMPLICE LIABILITY OVER DEFENSE OBJECTION.

            POINT II

            THE TRIAL COURT IMPROPERLY EXCLUDED EVIDENCE
            THAT POLICE FURTHER INJURED DEFENDANT AS PART
            OF THE ARREST; THAT EVIDENCE BOTH REBUTTED
            CLAIMS THAT DEFENDANT WAS RESISTING ARREST AND
            ALSO DEMONSTRATED BIAS AGAINST DEFENDANT WHICH
            COULD HAVE AFFECTED THE JURY'S DETERMINATION
            OF THE OFFICERS' CREDIBILITY.

            POINT III

            THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

     We reject these arguments and affirm.       None of defendant's

arguments have sufficient merit to warrant discussion in a written

opinion.     R. 2:11-3(e)(2).    We make only the following brief

comments.    In argument Point I, defendant claims the trial court

should have charged the jury to consider third degree receiving

stolen property as defined in 
N.J.S.A. 2C:20-7(a), as a lesser

included offense of robbery.     We disagree.   A trial court "'shall

not charge the jury with respect to an included offense unless

there is a rational basis for a verdict convicting the defendant

of the included offense.'"      State v. Cassady, 
198 N.J. 165, 178

(2009) (quoting 
N.J.S.A. 2C:1-8(e)).

     The Legislature defined the offense of third degree receiving

stolen property as follows:

            A person is guilty of theft if he knowingly
            receives or brings into this State movable

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            property of another knowing that it has been
            stolen, or believing that it is probably
            stolen. It is an affirmative defense that the
            property was received with purpose to restore
            it to the owner. "Receiving" means acquiring
            possession, control or title, or lending on
            the security of the property.

            [
N.J.S.A. 2C:20-7(a) (emphasis added).]

     By contrast, a person commits the crime of second degree

robbery "if, in the course of committing a theft, he [or she]: (1)

Inflicts bodily injury or uses force upon another[.]"            
N.J.S.A.

2C:15-1(a)(1).     The term "bodily injury" means "physical pain,

illness or any impairment of physical condition[.]"              
N.J.S.A.

2C:11-1(a).    Here, the testimony of the two police officers, who

witnessed and described the assault upon the victim, indisputably

stated defendant used physical force and inflicted bodily injury

on the victim in the course of committing the theft of his

property.   There is no rational basis in this record from which a

jury could find defendant "received this property" in any other

manner.

     Defendant's    remaining   arguments   do   not   warrant   further

comment or discussion.    R. 2:11-3(e)(2).

     Affirmed.




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