On certification to the Superior Court, Appellate Division, whose opinion is reported at 211 N.J. Super. 49 (1986).
For affirmance and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None.
Defendant was convicted, after a jury trial, of first degree robbery in violation of N.J.S.A. 2C:15-1, and of possession of a controlled dangerous substance, diazepam, contrary to N.J.S.A. 24:21-20. The Appellate Division upheld the drug-possession conviction but vacated the conviction for first degree robbery. The court below remanded for correction of the judgment to show a conviction for second degree robbery, and it ordered that defendant be resentenced on that conviction. State v. Hutson, 211 N.J. Super. 49, 53 (1986). We granted the State's petition for certification, 107 N.J. 222 (1986), to review the vacating of the first degree robbery conviction. Although we do not agree with all of the reasoning of the court below, we nevertheless affirm the judgment.
At about 1:00 a.m. on April 18, 1984, at Penn Station in Newark defendant, Donald Hutson, and his friend Gordon Sheppard hailed a taxicab driven by one Hull Pierre-Louis. They asked to be taken to an address on Bergen Street, Newark. The driver testified that as they approached the
destination, one of the passengers -- Pierre-Louis could not distinguish between them -- said that "they want[ed] some money." When the driver responded that he had no money, one of the passengers knocked on the partition between the front and rear seats and repeated their demand. Believing his passengers to be "playing around," Pierre-Louis paid little heed to their request until one of them said he had a gun, which the other passenger described as "a Magnum." The driver then testified that
[a]t this time I look in the back, they had a little newspaper and I started driving fast with no stop.
We pause to observe that, as will be seen, the reference to a newspaper assumes some importance. The foregoing excerpt from the transcript contains the only mention of a newspaper in Pierre-Louis's direct examination. Likewise on the driver's cross-examination there was but a single isolated allusion to a newspaper:
Q. You can't tell this jury which one of the men was holding a newspaper, can you?
Q. And you don't know which of the men asked you for the money?
A. Both of them asked me for money.
The passengers' announcement about a gun shed a different light on things for the victim, for as he testified:
Q. When he said they had a gun, a Magnum, what did that mean to you?
A. That's when they mean business. If I stop, they going to shoot, but if I keep driving fast in the cab, they're not going to shoot.
A. I keep driving fast, blew my horn, drive fast with no stop. Even red ...