On appeal from Superior Court, Law Division, Bergen County.
Approved for Publication July 12, 1996. As Corrected August 1, 1996.
Before Judges King, Landau and Kleiner. Kleiner, J.A.D., Dissenting.
The opinion of the court was delivered by: Landau
The opinion of the court was delivered by LANDAU, J.A.D.
Defendant Ricky L. Huff was found guilty of first-degree robbery (N.J.S.A. 2C:15-1) and third-degree theft by receipt of stolen property (N.J.S.A. 2C:20-7), following jury trial in Bergen County. After merger of the theft count into the robbery count, defendant was sentenced to the presumptive term of fifteen years, and a $500 fine was imposed along with VCCB and Safe Neighborhood penalties aggregating to $100 and $150 respectively. *fn1
On appeal defendant raises the following arguments:
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO DISMISS THE ARMED ROBBERY CHARGE SINCE THERE WAS NO EVIDENCE TO SUPPORT A CONVICTION FOR ARMED ROBBERY, THEREBY DENYING DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL.
THE PROSECUTOR'S EXCLUSION OF THE ONLY BLACK JUROR THAT WAS QUALIFIED BY THE COURT FOR SERVICE ON MR. HUFF'S JURY DENIED DEFENDANT HIS RIGHTS TO EQUAL PROTECTION AND A FAIR AND IMPARTIAL TRIAL.
THE TOTAL OMISSION OF A JURY IN-STRUCTION REGARDING IDENTIFICATION DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below)
THE IMPOSITION OF A PRESUMPTIVE FIFTEEN YEAR SENTENCE OF IMPRIS-ONMENT, IN LIGHT OF THE MINIMAL NATURE OF THE OFFENSE AND THE COURT'S BELIEF THAT NO GUN WAS INVOLVED, WAS EXCESSIVE.
We are satisfied that each of the arguments is without merit and affirm.
The charges against defendant arose out of a late night robbery of a lone cashier at a 7-Eleven store in New Milford on December 16, 1993.
According to the cashier, the robber bought a bag of Doritos after inquiring about directions to Hillsdale. She described the robber as a black male, about 200 pounds and six feet tall, with a mustache and close-cropped hair, wearing a dark stadium coat and a dark shirt. The robber said, "You have a family. I have a family. So you understand." He then patted his waist in a manner described and demonstrated to the jury by the victim, saying, "I have a gun here." He demanded money and the cashier gave him the contents of the cash drawer. A customer who entered the store saw the robber as he was leaving. Upon being told that the man "took all the money," the customer looked out the window and observed him enter an older model car, then drive out of the lot with headlights off.
Defendant was apprehended about two hours after the robbery based upon the description that the victim furnished to police. The capture occurred after defendant stopped at a Tenafly gas station, asking for directions to Hillsdale and complaining of car trouble. He aroused suspicions sufficient for the owner's brother, Christopher Reilly, to request that a police officer come to the station.
Reilly volunteered to lead defendant to Hillsdale, but the officer decided to follow, noting that defendant was driving without headlights. The officer stopped defendant's car, and noticed him eating Doritos. As defendant could not produce a license or registration, the officer returned to the patrol car to check the vehicle registration. Recalling a previous radio transmission about the 7-Eleven robbery, he also asked for a ...