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State v. Smith

Decided: December 14, 1993.


On appeal from the Superior Court of New Jersey, Law Division, Hudson County.

Baime, Conley and Villanueva. The opinion of the court was delivered by Conley, J.A.D.


Following a jury trial, defendant was convicted of first-degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4(d) (count two), and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count three). Counts two and three were merged with count one; defendant was sentenced to a twenty-year custodial term with a ten-year parole disqualifier. A $90 Violent Crimes Compensation Board penalty was also imposed. Defendant appeals, we affirm.

The convictions were based upon the following evidence. On January 23, 1990, Shawn Shivers was working alone as a station attendant at a Jersey City Mobil gas station. When he accumulated one hundred dollars from gas sales, he would temporarily close the gas pumps so that he could deposit the money in a safe located inside the attendant's booth. The lights inside the attendant's

booth were turned off, however, the lights over the gas pumps lit the interior of the booth. At approximately 10:00 p.m., while the gas pumps were temporarily shut down, Shivers was approached by two men while he was inside the booth talking on the telephone. Shivers noted that one of the men was short and fat while the other man was tall and skinny. The men asked to purchase gas and cigarettes. As Shivers opened the door to hand the men the cigarettes, the men rushed into the booth. The fat man pretended to have a gun while the skinny man attempted to open the safe. When the fat man realized that Shivers had keys to the safe on a chain around his neck, he grabbed the keys, and switched places with the skinny man, attempting to open the safe with the keys. Shivers viewed the skinny man's face when he walked behind Shivers and held a knife to his neck. The knife was distinctive -- its handle was wrapped in cowhide with strings criss-crossing the handle. When the men could not open the safe and became agitated, Shivers offered the men one hundred dollars from his coat pocket. They took the money and left. Shivers called the police and gave them a description of the men.

In the meantime, Officer Arthur Teeter and his partner Officer Michael Baycezk were patrolling the area. When they observed a person, later determined to be Henry Nunez, chasing after two other individuals, they immediately made a U-turn so they could catch up with the runners. When they caught up with Nunez, he told the officers that he had driven into the gas station at the time of the robbery and observed the robbery. When Nunez saw the men leave the attendant's booth and run down the street, he began chasing them. During the chase, the fat man fell down and the skinny man bent over to pick him up. At that time, Nunez observed the skinny man's face.

After Nunez related the events to the officers, he gave them a description of the men. The officers radioed those descriptions into police headquarters and resumed their chase. During the chase, the officers recovered a blue jacket one of the men had been wearing during the robbery.

Officers William Moore and Todd Burke, also on patrol in the area, were advised of the robbery and given descriptions of the alleged perpetrators by the police radio dispatcher. As they were driving, they observed a man walking down the street matching the description of one of the alleged perpetrators. They stopped and questioned the man, and, after a struggle, arrested him. The officers recovered a knife and $100.00 dollars from his jacket. Thereafter, they returned to the Mobil station where Shivers recognized the face of the man and identified him as the skinny perpetrator. Shivers further identified the knife found in the man's possession as the knife held to his neck during the robbery. Nunez also identified the man as one of the perpetrators. Further, Nunez identified the blue jacket recovered by Teeter and Baycezk as the same jacket the man was wearing during the chase. The man was later identified as defendant.

At trial defendant denied any participation in the robbery. He testified that he left his workplace and began drinking at 4:00 p.m. on the day of the robbery. From there he said he went to his sister's apartment where he remained for several hours, aside from leaving temporarily to purchase more alcohol and pick up a female friend. When he returned to the apartment, he got into a fight with his brother-in-law who refused to give him more money for alcohol. Thereafter, his sister and brother-in-law threw him out of the apartment. Defendant testified that after he was kicked out of the apartment, he began walking towards his niece's house. It was at that point in time that he was apprehended by the police.

The defense provided three witnesses corroborating defendant's story. Jaliyl-As Sadiq testified that he was the superintendent of the building where defendant's sister lived. Sadiq verified that defendant was loud and abusive on the evening of January 23, 1990, and that defendant was escorted out of the building by two security guards. Salaam Hakim, one of the security guards, testified that he spent approximately twenty-five minutes attempting to remove defendant from the building. Hakim further testified

that defendant was extremely drunk. Defendant's brother-in-law, Alonzo Allen verified that defendant came to the apartment on the night of January 23, 1992. He also testified that he observed the police chasing someone, but, at that time, defendant was still in his apartment.

Prior to trial and at the time of the grand jury proceeding, defense counsel had provided the prosecutor with three statements from these witnesses. However, although they were essentially consistent with the trial testimony and tended to place defendant in an intoxicated state and at some other location, none of the statements related to the time of the robbery. The first statement accounted for defendant's whereabouts from 7:30 p.m. to 9:00 p.m., or one and one-half hours before the robbery. The second statement had no time frame and the third statement dealt with defendant's whereabouts from 6:00 p.m. to 7:30 p.m. Defendant's motion to dismiss the indictment based on the prosecutor's failure to present these statements to the grand jury as exculpatory evidence, was denied.

On appeal, defendant contends:


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