On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication May 16, 1996.
Before Judges D'Annunzio, Conley and Braithwaite. The opinion of the court was delivered by D'annunzio, J.A.D.
The opinion of the court was delivered by: D'annunzio
The opinion of the court was delivered by D'ANNUNZIO, J.A.D.
Tried to a jury under Bergen County Indictment S-857-94-01, defendant was convicted of second degree robbery, in violation of N.J.S.A. 2C:15-1; carjacking, in violation of N.J.S.A. 2C:15-2; and criminal restraint, as a lesser included offense of kidnapping, in violation of N.J.S.A. 2C:13-2a. The court sentenced defendant to twenty-five years imprisonment with a twelve and one-half year period of parole ineligibiltty for the carjacking. The court also sentenced defendant to ten years imprisonment with five years of parole ineligibility for the second degree robbery and to five years imprisonment with a two and one-half year period of parole ineligibility for the criminal restraint. All sentences were imposed to be served concurrently.
On April 16, 1994, Daniel McLaughlin, the assistant manager of a drugstore in Teaneck, saw defendant put items in a bag and then leave without paying. The store's security alarm sounded, and McLaughlin tried to get defendant to return to the store in order to check the bag.
Defendant instead walked away briskly, and McLaughlin followed him to the intersection of Penn Avenue and River Road. Defendant stopped a car and tried to get in it, but the passenger pushed him away. He went to the next car, operated by Alison Bond, and got in on the passenger side.
Shortly thereafter the car stopped at a red light, and McLaughlin approached it. He told Bond that he was following defendant "in relation to a possible shoplifting and that she may not want to be in the vehicle with him." Bond immediately put the transmission in park and tried to get out, but defendant "reached across and grabbed her by her right arm and what I thought was a purse strap and physically pulled her back and held her in the car while he . . . put his foot on the accelerator and put the gear shift into drive." McLaughlin ran to a nearby gas station and called the police.
Ralph Ronne, who lived near the intersection of Penn Road and River Road in Teaneck, saw part of the incident. He heard McLaughlin say, "Well, come back to the store. You just robbed the store." By the time Ronne got outside to his porch, defendant was standing in the middle of River Road stopping traffic. Defendant stopped a car and three men jumped out. McLaughlin said, "He robbed my store. Grab him." Defendant then got into another car with a woman driver, about a block from Ronne's house. The manager went to the driver's door and knocked on her window. Ronne heard the manager ask defendant to get out of the car, but when the men from the first car approached, Ronne supposed that defendant "got nervous and he jammed on the woman's gas pedal and went through the light." The driver was trying to get out, but her seat belt impeded her and defendant "grabbed her by the shoulder and pulled her back in." Ronne did not see defendant step on the accelerator, but he "knew" the driver was not operating it. Ronne added that the driver "was dumbfounded, she didn't know what was going on."
Bond testified that at the time of the incident she was going to Riverside Square, a mall on Route 4 in Hackensack. She was on Penn Avenue, approaching the intersection with River Road, when she saw a man with a bag trying to stop cars. The vehicle ahead of her did not stop for him, so she stopped "to find out what the problem was." There were two women on the sidewalk near him, and Bond thought they were related and that there was a medical emergency, "a man who wants to take his wife to the hospital to have a baby or something of that order." The man got in her car and said he needed a ride to Route 4. Bond apparently turned onto River Road at this point.
Bond thought the man was very agitated. She asked him what was the matter, and he said he had been in a fight with his sister's boyfriend and needed to get to Route 4. She realized then that there was no medical emergency. She testified that she thought "well, I'll have to take him to Route 4, you know, and just hope that's all I have to do." She felt that she did not really have a choice.
Bond drove one block and stopped for a red light. At that point, McLaughlin ran up to her car and knocked on her window. Bond opened the door after he identified himself. McLaughlin said to her, "are you aware you have a shoplifter in your car?" Bond put the car in park and tried to get out but her seat belt was still fastened. She testified that it was more the seat belt than defendant that prevented her from leaving the car. Defendant put the transmission back in drive, put his foot on the accelerator, and said "let's go." Bond added that "he may have pulled my arm" as well.
They crossed the intersection and proceeded along River Road for about five blocks until Bond asked defendant to take his foot off the accelerator, and he complied. Two blocks later they approached a red light, and the man told her to "run it." She did so because she felt she had no choice. She "was feeling very frightened and annoyed at myself for stopping in the first place because I felt like I had gotten into something that I couldn't control." She "wasn't afraid of being killed," but rather "was just afraid of the whole situation of being in the car and speeding along and just not knowing what was going to happen."
When they turned onto Route 4, the man was still very agitated. "He kept saying he didn't want to go to jail, he didn't want to go to jail, and he didn't want to hurt me, but he didn't want to go to jail." The Route 4 traffic was stopped because of heavy volume. Bond asked defendant, "why don't you get out," and he did. He had not threatened her, he did not have a weapon, and Bond understood that all he wanted was to get away from the other man who had called him a shoplifter. At some point he said he "was scared about what [Bond] might say," which she took to mean her telling the police "where he was going so they could catch him."
Bond turned the car around and went back to a gas station at the corner of River Road and Cedar Lane, where she saw a police car and spoke to the officers. Two hours later she went to the police station to give a statement. In it she said she was in fear for her life, because she "felt very, very scared initially." She did not mention the man's grabbing her arm. At trial she explained that omission by saying that it "was not the primary thing," and specified that "I'm not saying now that he was forcing me in that he pulled me," only that "I know that he had at some point touched my arm."
Officer Thomas Sikorsky, who took defendant's statement, read it to the jury as follows:
Question: "What can you tell us about this incident?"
Answer: "I was in the CVS store on Cedar Lane. I took about 17 boxes of Bayer aspirin, Advil, and Anacin. . . . I put them in a plastic bag. . . . Then when I left the store, I walked up Cedar Lane and made a right on Elm Avenue. I went through some apartment buildings, through an alleyway, and back onto Larch Avenue, and then I ran down Penn Avenue because I had the stolen shit on me and I wanted to get out of the area. Actually, I didn't start running until I saw the store worker from CVS following me and then I started to run.
"When I got to River Road, I tried to flag down some cars. A lady stopped, rolled down her window, and I said, 'Excuse me, ma'am, can I get a ride to Route 4?'
"She said, 'Okay,' and then she opened the door and let me get into her car.
"When we got to the red light at River Road and Cedar Lane, the manager walked up to the car and said, 'Are you aware that you picked up a shoplifter?'
"I'm not sure how the lady answered the manager. The light turned green and I said, 'Go.' The lady had her foot on the brake and I took my left foot and pressed down on the accelerator and said, 'Go.' So I had my foot down on the accelerator with so much velocity that she had to let go of the brakes because the ...