State v. DeLuca

739 A.2d 455, 325 N.J. Super. 376
CourtNew Jersey Superior Court Appellate Division
DecidedNovember 8, 1999
StatusPublished
Cited by21 cases

This text of 739 A.2d 455 (State v. DeLuca) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. DeLuca, 739 A.2d 455, 325 N.J. Super. 376 (N.J. Ct. App. 1999).

Opinion

739 A.2d 455 (1999)
325 N.J. Super. 376

STATE of New Jersey, Plaintiff-Respondent,
v.
Gino A. DELUCA, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted September 27, 1999.
Decided November 8, 1999.

*457 Ivelisse Torres, Public Defender, for defendant-appellant (Philip V. Lago, Designated Counsel, of counsel and on the brief).

Peter Verniero, Attorney General, for plaintiff-respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief.)

Before Judges PETRELLA, BRAITHWAITE and COBURN.

*456 The opinion of the court was delivered by BRAITHWAITE, J.A.D.

On August 21, 1996, defendant and co-defendant, Paul Pallazzo ("Pallazo"), were indicted by the Somerset County grand jury for conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; armed robbery, N.J.S.A. 2C:15-1; possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and unlawful possession of a firearm, N.J.S.A. 2C:39-5(b). Thereafter, on June 25, 1997, defendant was indicted in an unrelated matter for second degree robbery and terroristic threats by the Somerset County grand jury.

Defendant's trial on the August 21, 1996 indictment was severed from that of Pallazo. Following a jury trial, defendant was convicted of all counts. At sentencing on the tried convictions, the trial judge merged the conspiracy and both firearm convictions with the armed robbery conviction and sentenced defendant to a custodial term of eighteen years with an eight year period of parole ineligibility. Defendant subsequently entered a guilty plea to the June 25, 1997 indictment pursuant to a plea bargain. The State recommended a sentence of seven years with a one and one-half year period of parole ineligibility, consecutive to the sentence defendant was *458 to receive on the convictions resulting from his trial. The judge followed the recommended sentence in the plea bargain after merging the terroristic threats conviction with the robbery conviction. Defendant's aggregate sentence was twenty-five years with a nine and one-half year parole disqualifier.

Defendant now appeals and contends:

POINT I

The sentence imposed by the court is excessive.

POINT II

The trial court committed plain error by allowing admission of expert testimony on the issue of footprint identification.

POINT III

The trial court erred in denying defendant's motion for a judgment of acquittal on the conspiracy count.

POINT IV

The lower court erred in denying defendant's motion to suppress information retrieved from defendant's pager.

POINT V

Defendant was denied the effective assistance of counsel due to counsel's failure to object to a hearsay statement of the codefendant.

POINT VI

Defendant was denied the effective assistance of counsel due to counsel's failure to prepare for expert evidence in the trial.

A. Failure to Prepare for Maureen Low-Beer's Testimony.

B. Failure to Prepare for Ms. Swec's Testimony.

C. Defendant was Denied the Effective Assistance of Counsel.

POINT VII

The guilty plea to second degree robbery must be vacated and remanded for expansion of the record to determine whether the plea was voluntary and knowing.

We reject these contentions and affirm.

I

On December 20, 1995, at approximately 8:15 p.m., a "yellowish" car was driven onto a property in the Borough of Millstone. The property contains a gasoline station and the Stop and Buy Food Store. The car stopped near the gasoline station and an armed man exited the vehicle and walked into the food store. The gunman was wearing a blue ski mask and holding a black pistol. As he entered the store, he demanded money from the owner, Vipin Patel ("Patel"), who was working behind the counter.

Rather than give the gunman money, Patel ducked behind the counter. The gunman then went behind the counter and struck Patel ten to fifteen times in the head. Although injured and bloodied by the attack, Patel jumped over the counter and escaped out the front door. As Patel fled, the gunman threw the store safe at him, but missed.

The gunman pursued Patel as he ran screaming toward the gasoline station. His screams attracted the attention of the gas station attendant, Tret Wilson, who looked out the station's window and observed the "yellowish" car speeding off and Patel running toward the station covered in blood. The gunman fired the pistol in the direction of the fleeing Patel, missing him, but lodging the bullet in the gas station's window frame. Wilson telephoned the police and Patel was taken to the hospital for treatment of his injuries. The gunman took between $500 and $700 in cash and caused $2,000 in damages to Patel's store.

Hillsborough Township Police Officer Steven Gonzalez ("Gonzalez") responded to a police dispatch and went to the crime scene. The dispatcher notified Gonzalez that there was an armed robbery with two suspects. He was told: "one suspect was *459 possibly operating an older yellow duster-type vehicle. One suspect may have left the scene on foot." While Gonzalez was looking for suspects and evidence outside the store, he was approached by Sean Taylor, a local volunteer fireman, who told Gonzalez that a man was just seen walking in the middle of Hamilton Road attempting to flag down passing cars. Taylor told Gonzalez that the individual in the road was "screaming and yelling and waving his arms," appearing as if he wanted someone to give him a ride.

As Gonzalez headed in the direction where Taylor reported the man in the street, he noticed footprints with a distinctive pattern in the snow. Gonzalez testified that there was about twelve inches of snow, and that the temperature was "possibly below zero" the night of the incident. He further testified that the footprints appeared "consistent" and described them as a "vibrum type sole, a particular, like a triangular like pattern of the wearer." After following the footprints for a while, Gonzalez briefly saw the silhouette of a person approximately 100 feet ahead of him. As Gonzalez radioed for backup, the person disappeared. A second officer responded to the backup call and both officers soon saw the individual that Gonzalez observed earlier, this time about thirty to forty feet away. Gonzalez then yelled "stop, police." The individual immediately ran up the road and into a wooded "brushy" area. Gonzalez returned to his squad car and drove to the wooded area.

When the officers saw the individual again, about 200 to 300 feet away, Gonzalez activated the overhead lights of his squad car and notified headquarters of the suspect. Accompanied by the second officer, Gonzalez entered the wooded area following the same distinctive footprints that he had observed earlier. Gonzalez saw a man, wearing a blue jacket, lying face down on the ground "in a fetal position with his hands deep in the snow, trying to throw snow over himself." The man, later identified as defendant, was arrested and placed in the squad car.

Defendant was searched and an "older style" pager and several Atlantic City casino receipts were recovered. Defendant was then transported to police headquarters where he "started to complain of frostbite." The rescue squad was called.

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739 A.2d 455, 325 N.J. Super. 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-deluca-njsuperctappdiv-1999.