On appeal from the Superior Court, Law Division, Atlantic County.
Matthews, Antell and Francis. The opinion of the court was delivered by Matthews, P.J.A.D.
The trial of this case centered on the allegation that defendant robbed William Hampton on May 25, 1981, at around 8:30 p.m., while Hampton was waiting for a bus at the corner of Atlantic and South Carolina Avenues in Atlantic City. Hampton claimed that defendant jumped out of the Ford pickup in which he had been riding, stuck a flare gun into his side and robbed him of $50. Defendant denied that he took any money, made any threats or used any firearm during the incident; instead, he claimed that he had merely grabbed a bag of marijuana out of Hampton's hand after Hampton offered to sell some of the "reefer" to codefendant Longnecker. The jury's verdict, as well as their request for the reading of defendant's testimony during deliberations, made it clear that they believed defendant's testimony rather than Hampton's, and both the judge and the prosecutor recognized this fact during the post-trial proceedings. Accordingly, we accept defendant's account of the incident as the factual basis for this appeal.
Defendant, a native of Florida, testified that he and one Blewitt, the owner and driver of the Ford pickup, had stopped in New Jersey prior to the date in question to visit a friend in Willingboro. They met Longnecker, the third defendant, at the hotel where they were staying. On the day in question the three had travelled to Atlantic City to do some gambling in the Resorts Hotel Casino.
Defendant and Blewitt had been travelling in the Ford pickup since they left Tennessee, and almost all of defendant's possessions were stored in the truck. The flare gun, which defendant
had used on his boat in Florida, had been kept on the dashboard of the truck during the trip from Tennessee. Among the articles kept behind the seat of the truck were an air rifle with a broken stock and a CO2 rifle that had been kept in a cloth bag. Defendant testified that he had used the two rifles to hunt birds and squirrels in the woods of Florida and Tennessee. He denied that he had ever used them against any persons.
Blewitt was driving, Longnecker was in the passenger seat and defendant was sitting between them when they got into the truck for the return trip to Willingboro. Defendant was "fooling" with the stereo when the car stopped for a red light at Atlantic and South Carolina Avenues. While the truck was stopped Hampton approached it on the passenger side, pulled out a plastic bag of marijuana and apparently offered to sell some to Longnecker, who asked defendant for some cellophane in which to keep the marijuana. When the traffic light changed, however, defendant grabbed the bag of marijuana from Hampton's hand. When Hampton clutched at the bag it tore in half, leaving defendant with the marijuana and Hampton with a piece of plastic. When he saw that the truck was being followed, defendant tossed the flare gun into the truck's cab and hid the marijuana under his pants. He was certain, however, that Hampton had seen the flare gun on the dashboard during the incident.
After the truck drove off, Hampton flagged down Officer Mark Stiles, a motorcycle policeman passing nearby, and told him that he had been robbed by the men in the truck.
Stiles then flagged down Officers Richard Kraly and Edward Shepperson, who were in a nearby police car, and the three officers pulled the truck over and searched defendants. Stiles then brought Hampton to the scene of the stop and an identification was made. The flare gun, the air rifle and the CO2 rifle were found in the well behind the seat of the truck. All three weapons were later determined to be operable.
As mentioned earlier, defendant gave a statement to the police in which he denied committing an armed robbery of
money but admitted that he had taken the "reefer" from Hampton. Although Stiles claimed he found the ripped bag of marijuana on defendant's person, defendant claimed that it was found only ...