On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication November 14, 1995.
Before Judges Dreier, A.m. Stein and Cuff. *fn1 The opinion of the court was delivered by A.m. Stein, J.A.D.
The opinion of the court was delivered by: Stein
The opinion of the court was delivered by A.M. STEIN, J.A.D.
Defendant cross-appeals from his conviction of second degree conspiracy, N.J.S.A. 2C:5-2 and 2C:15-1; first degree armed robbery, N.J.S.A. 2C:15-1, third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He was sentenced to a fifteen-year term for the first degree armed robbery and to a concurrent four-year term for the unlawful possession of a weapon. The other convictions were merged for sentencing purposes. The trial Judge concluded that he was not satisfied by a preponderance of the evidence that a real handgun was involved in the robbery and therefore did not impose a mandatory minimum Graves Act sentence pursuant to N.J.S.A. 2C:43-6d. The State appeals from this ruling.
Because we reverse and remand for a new trial, we dismiss the State's appeal as moot.
The victim testified during trial that on June 1, 1993, at approximately 1:30 p.m., he cashed a check for $321 at a check cashing facility on 15th Avenue and 18th Street in Newark. He walked to a bus stop and, while waiting for a bus, turned around to face two men, one of whom was pointing a gun at his face. They ordered the victim to "get the f--- on your face, just get down." One of the men said, "Get down on the ground and don't mother f-g move." The man without the gun then searched the victim's pockets as the other man ordered, "Don't mother f-g move. If you do, we're going to blow your f-g head off."
While he was lying on the ground, the victim was able to observe the gun and the face of the man without the gun. The victim described the gun being held to his head as a ".45 magnum" approximately ten inches long, black with a brown handle. The victim explained that the gun was a revolver and not an automatic gun and that he was familiar with guns from reading magazines about guns.
The victim testified that he saw defendant's face during the robbery and recognized defendant as someone he had seen around. He identified defendant as the man without the gun who took the $321 from the victim's pockets.
After defendant and his accomplice fled, the victim called a friend who then called the police. The police took the victim to the police station where he gave a report and identified defendant from a number of photographs. Detective Johnson of the Newark Police Department testified that on June 1, 1993, the victim identified a photograph of defendant as one of his attackers. At this time, the victim told the police that he did not know defendant. He also testified before the Grand Jury that he did not know either of the men who robbed him.
At trial, the victim testified for the first time that he had seen defendant "around" his high school. On cross-examination, the victim was confronted with the inconsistency between his pretrial declarations and his trial testimony. Defendant's girlfriend, who had known him since childhood, testified that defendant had not attended the high school named by the victim.
During deliberations, the trial Judge received a note from the jury containing the following: "Police report, Grand Jury report." There is no record of any Discussion by the court, prosecutor and defense counsel, out of the jury's presence, as to the meaning of this note or how the Judge should respond to the jury. Such a Discussion on the record is necessary whenever there is any confusion as to what the jury really wants.
After receiving the note, the trial Judge told the jury:
By this I assume you want the police report and Grand Jury report. The short answer to this is I cannot give ...