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State v. Jefimowicz

Decided: January 17, 1989.


On appeal from the Superior Court, Law Division, Monmouth County.

Pressler, Scalera and Stern. The opinion of the court was delivered by Pressler, P.J.A.D.


Following a trial by jury, defendant Leonid Jefimowicz was convicted of armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and receiving stolen property, N.J.S.A. 2C:20-7a. He was sentenced on the armed robbery conviction to a mandatory extended Graves Act term of life imprisonment subject to 25 years of parole ineligibility. N.J.S.A. 2C:43-6c, 2C:43-7c. The third-degree weapons charge was merged into the second-degree weapons charge, a concurrent 12-year sentence was imposed on that conviction, and a concurrent 7-year sentence was imposed on the receiving conviction.

On appeal defendant argues that he was denied effective assistance of counsel by reason of his trial attorney's failure to move for a severance of the charge of receiving stolen property

from the remainder of the offenses charged in the indictment.*fn1 He also contends that he was denied a fair trial by reason of prejudicially improper remarks made by the prosecutor in her summation. Defendant did not, however, make any challenge to the sentence imposed. We directed the filing of supplemental briefs addressing both the sentencing procedure and the quantum of the sentence,*fn2 and we now consider those issues as well.

In sum, we have concluded, based on our review of this record in the light of the applicable law and the argument of counsel thereon, that the two issues defendant has raised are without merit. R. 2:11-3e(2). We do, however, have grave concerns about the sentence, concluding that its imposition was procedurally defective and that its quantum is unsustainable. Accordingly, we affirm the guilty verdict but remand for new sentencing in accordance with this opinion.

The charges against defendant arose out of an incident which occurred early in the evening of September 28, 1986. The victim, William Zielenbach, then 16 years old and a high school student, was working at his part-time job pumping gas at a service station in Marlboro Township. He was alone there at the time. Defendant, driving a van, pulled into the station, stopping close to the booth where the cash drawer was kept. He asked William for $10 worth of gas. While he was pumping the gas, William recalled that he had left the cash drawer in the booth open, and he watched defendant looking at the visibly open cash drawer and back to him. When William finished pumping the gas, he went to the driver's window and as he approached it, he testified, defendant

took a gun from underneath his flannel jacket and went like this, pointed it straight into my face, clicked the hammer back twice. On the second click, I jumped behind a door and I was running across the highway.

William further testified that he knew the gun was loaded because he could see "the bullets sticking out like the head of the bullets." No words, however, were spoken. Terrified, William ran across the highway to the home of a friend directly across from the gas station, and the friend's mother, seeing him in a hysterical state, called the police. Defendant, based on William's description, was apprehended in the van shortly thereafter. A consent search of the vehicle revealed the gun. It appears that when William fled, defendant simply drove away, leaving the cash drawer untouched. Nor, of course, had he paid for the gas.

Defendant, despite his prior criminal record, of which we will have more to say hereafter, testified in his own behalf. He said that he had bought the gun from a stranger in a bar for $50 two days earlier, thinking that it was probably stolen. On the day in question, he was looking for a bar in which he could sell the gun and had simply pulled into the service station for gas. When he stopped the van, he said, the gun slid out from where he had placed it under a rug onto the metal floor of the van. His explanation for what he was doing with the gun in his hand when William came to collect the money for the gas was that

Well I can hear the sound of thing going into the tank nozzle. Glance back at him, you know I looked, make sure he's back there. Pulled up the gun in my right hand. I put my left hand through the spoke of the steering wheel, pulled the hammer back. I was turning the cylinder on the gun. I blew some of the dust out of it. The moment I looked up I seen through the side vision, I looked up and he's standing right there. All of a sudden he just runs and me -- I got the gun and the kid is running. I'm not suppose to have a gun.

He also testified that he had never noticed the cash drawer and never had any intention of committing a robbery.

As to the charge of receiving stolen property, the State adduced proof that on the same day on which defendant claimed to have bought the gun in the bar, a home had been burglarized and a firearm stolen whose registration number ...

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