On appeal from the Superior Court of New Jersey, Law Division, Union County.
King, Deighan and Havey. The opinion of the court was delivered by King, P.J.A.D.
Defendant appeals his convictions under a multiple-count indictment charging various assaultive crimes and his aggregate 15 to 30-year sentence. We conclude that, except for a modification of the sentence as to Count 11, the convictions and sentence must be affirmed.
This is the procedural background. Defendant was charged with the following: possession of a handgun without the requisite permit, contrary to N.J.S.A. 2C:39-5b (Count One); possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (Count Two); aggravated assault, contrary to N.J.S.A. 2C:12-1b(2) and N.J.S.A. 2C:12-1b(4) (Counts Three, Four, Nine and Ten); attempted murder, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Counts Five and Eleven); receiving stolen property, contrary to N.J.S.A. 2C:20-7 (Counts Six and Seven) and theft of movable property, contrary to N.J.S.A. 2C:20-3 (Count Eight). Defendant was convicted after a jury trial on all counts but Count Eight.
Defendant was sentenced as follows: on Counts One and Seven to two concurrent five-year terms of imprisonment; on Count Five to an extended term of 20 years imprisonment with a ten-year parole disqualifier; and on Count Eleven, to ten years imprisonment with a five-year parole disqualifier consecutive to Count Five. Counts Two, Three and Four were merged with Count Five, and Counts Nine and Ten were merged with Count Eleven. A $100 penalty to the VCCB was also imposed.
This is the factual background. On February 15, 1983 at about 9:30 a.m. Paula Palermo, branch manager of the Queen City Savings and Loan on 655 Raritan Road in Cranford, New Jersey, and Annette Marie Hergert, assistant manager, were at
work when several men wearing ski masks, jumpsuits, jean shirts, and sneakers came into the bank. One of the robbers was six-feet tall and wore a blue denim jumpsuit, gray sneakers, and orange gloves. He held a silver revolver with a wooden handle in his right hand and, as he approached Hergert's desk, he shouted, "Get on the floor." Everyone obeyed this command. However, Palermo was still able to see what was going on in the back of the bank because she was behind the teller's counter when the robbers entered. She saw one of the robbers jump over the third teller's window, move to the drive-in area of the bank, push the teller, Denise Rodriguez, to the floor, and remove money from a drawer. At the same time, another robber reached into the teller's drawer directly above where Palermo was lying and removed money which tripped a silent alarm. When he realized this, the robber urged his cohorts to hurry and they took packets of checks and travelers checks as well as a packet of money that had been treated with exploding red dye. The robbers fled in a 1975 Ford LTD which had been stolen the day before.
Palermo then locked the bank and contacted security. Responding officers included Detective Sgt. John Hicks and F.B.I. Agent Martin Houlihan. Hicks was informed that the LTD had been found in a nearby parking lot about a half-mile from the bank. He located the vehicle and found a red dye stain on the floorboard and a burn mark on the left rear of the car. Meanwhile a pillowcase with red-dyed cash was turned in to the Cranford Police by a man named Glen Comes who found it in the middle of Raritan Road.
Officer John Lowery of the Cranford Police Department heard a radio report concerning the robbery, learned that the suspects were headed for the Garden State Parkway, a limited access freeway, and proceeded to the northbound entrance ramp at Exit 137 to set up a roadblock. When he arrived at the ramp Detective Sgt. Milton Mason had already arrived and was halting all four lanes of traffic. Mason had received information concerning a light-colored Ford with four black males
inside which was supposedly being used as the getaway car. Traffic was then funnelled into the extreme left and right lanes; Mason checked cars on the left while Lowery checked those on the right.
State Trooper Kornelius Vander Ploeg was also on the Parkway at this time and heard a radio report concerning a yellow Ford which the suspects were driving towards the Parkway. Vander Ploeg was driving south but noticed the roadblock in the northbound lanes and joined Officer Lowery in checking cars on the right hand side of the roadblock.
About ten minutes after the procedure was initiated, a light-colored car approached Mason in the far left lane. Mason saw two black males seated in the front and, as the car got closer, he noticed at least one other male lying down on the floor in the back. The car raced through the roadblock as Mason yelled to Lowery and Vander Ploeg to "check that vehicle out." Lowery and Vander Ploeg quickly gave chase in their respective cars and Mason followed closely behind. Vander Ploeg took the lead in the chase, which was proceeding at 70 to 80 miles per hour, but had to take evasive action to avoid a collision with another motorist and gave the lead to Lowery who was able to come within 30 feet of the Ford. Lowery observed that the occupants of the car were four black males. The man in the left rear was in his 30's, with facial hair, wearing a black coat with blue overalls and bright orange gloves, and carrying a .38 caliber revolver. Later that day, Lowery identified this man as the defendant, James King.
At approximately Milepost 141, defendant completely turned around in the back of the car and faced Lowery. He reached out of the driver's side window and fired his revolver three times at Lowery. Shortly before reaching a toll plaza the Ford moved from the extreme left lane across three lanes of traffic and went through the far right toll lane at 70 miles per hour, followed closely by Lowery and Vander Ploeg.
The Ford then left the Parkway at Exit 142 and got on I-78 headed towards Newark. All three passengers turned and fired their guns at Lowery during this part of the chase. Vander Ploeg corroborated this by testifying that he was only two car lengths behind Lowery at the time and that he saw the muzzle flash when the shots were fired at Lowery. At Exit 56 the Ford attempted to get off I-78 but crashed into a Volkswagen which was trying to exit at the same time. Lowery's patrol car also became involved in the accident and he was stunned for a few seconds but then managed to get out of his car and take a shotgun with him. By this point the four occupants of the Ford had jumped out of their vehicle and climbed over a snowbank separating the exit from the roadway. Defendant attempted to shoot at Lowery from a distance of about 25 feet but his gun did not fire. Lowery also attempted to shoot defendant but the safety catch was on his gun and by the time he could fire the weapon King was already 200 feet away. Vander Ploeg and Mason arrived within seconds after the suspects got away. All three policemen met at a fence which had jagged edges at its top and which the suspects had most likely scaled.
Rather than climb the fence, the two officers and the trooper went through a hole which they found in the fence and entered a residential section of Newark. All three searched the area for the suspects, Lowery and Vander Ploeg together and Mason by himself. As Mason passed by 186 Hawthorne Avenue, he saw a man sweeping outside. Mason asked the man, later identified as the defendant, whether he lived there and the man responded affirmatively. The man also denied seeing anyone run by.
Mason then found Vander Ploeg and Lowery and asked Lowery for a description of defendant. When Lowery described him, Mason told Lowery about the recent encounter and said that he thought defendant was the person at 186 Hawthorne Avenue. The three returned to that location but defendant was gone. Other officers joined the three and the hallway
and roof of 186 Hawthorne Avenue were searched. They found a black jacket, blood-stained overalls, blue jeans, a blue shirt, and blood-stained orange gloves. A .38 caliber revolver was discovered in the overalls. State Trooper Ronald Andrejack examined this weapon and determined that a firing malfunction had occurred which had caused a bullet not to discharge. Later that day the photographic arrays were presented to Lowery and Mason; both selected defendant's photograph. Lowery also accompanied F.B.I. agents and local officers to 123 South Munn Street in East Orange where he identified defendant from a group of four men as the person who shot at him from the Ford. Lowery then inspected defendant's hand and found puncture wounds which had been bandaged. King then was arrested. The Ford was seized and the contents inventoried by the police. Traveler's checks, a ski mask, and a .45 caliber handgun were found inside.
At trial, defendant denied taking part in any of the described events. His wife testified that the puncture wounds on his hands resulted from shovelling snow. As noted, King ...