On appeal from Superior Court of New Jersey, Law Division, Union County.
Approved for Publication October 23, 1997.
Before Judges Pressler, Conley and Carchman. The opinion of the court was delivered by Conley, J.A.D.
The opinion of the court was delivered by: Conley
The opinion of the court was delivered by
Tried jointly *fn1, each defendant was convicted by the jury of robbery and weapons offenses. As to the robbery, defendants Wormley and Eden were convicted of first-degree robbery with a firearm, N.J.S.A. 2C:15-1, while defendant Brooks was convicted of the lesser included second-degree robbery. All three, however, were convicted of possession of the firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). All three were also convicted of possession of the firearm without a permit, N.J.S.A. 2C:39-5(b). *fn2 Wormley and Eden were also, in a separate trial with the same jury, convicted of possession of a firearm by one previously convicted of kidnapping and/or robbery, N.J.S.A. 2C:39-7. Eden and Wormley were sentenced to extended terms; Eden to an aggregate term of fifty years with a twenty-year disqualifier, and Wormley to an aggregate term of fifty-five years with a twenty-year disqualifier. Brooks received an aggregate term of eight years with a three-year disqualifier. We reverse the convictions and remand for a new trial.
A detailed factual recitation might be of some interest, but for the purposes of this opinion we think the following summary is sufficient. The State's primary witness was William Nelson, who claimed to have been robbed at gun point of $40, a jacket and a key chain with a pink rabbit's foot. According to Nelson, there were three robbers, two with guns and a person in the getaway car whose face he did not see. Troy Tucker, a lifetime friend of Nelson, was the other primary witness. He happened onto the scene as the perpetrators were speeding off and passed his car, going the wrong way on a one-way street. Tucker made a u-turn and gave chase, ultimately leading to the arrest of defendants as their vehicle pulled into a gas station. Tucker, however, never saw the alleged robbery or the perpetrators and his chase of defendants' vehicle was based upon someone's having shouted to him as defendants' car passed him "yo, they robbed us." Meanwhile, Nelson and his friends were chasing another car that they thought was the getaway vehicle, only to be thwarted in their efforts when an officer they asked for help, after the vehicle had stopped and the occupants got out, refused to respond.
In addition to a pellet gun, items that Nelson claimed had been taken from him, a jacket he identified as his and a key chain with a pink rabbit's foot, were found in defendants' vehicle. Nelson claimed that three of his friends who had been with him when he was robbed also had their coats or jackets taken. Several coats, other than Nelson's, were, in fact, found in defendants' car, along with $200. But, aside from Nelson, only one other person responded to the police station to claim a coat, and Nelson denied that that person was one of the other victims.
During trial, Nelson identified Eden and Wormley as the two gun-toting thieves. Yet he did not select Wormley's photo from the police photo line-up shortly after the incident and he selected the photo of a person all agree was not involved at all. He did select Eden's photo, but he also selected Brooks' photo. Brooks was the driver of the car Tucker chased. Nelson, however, consistently maintained he did not see the driver of the getaway car and he did not identify Brooks at trial. In addition, Nelson claimed that one of the two men with guns wore a beige or brown-colored jacket. According to the officers on the scene, however, neither of the two defendants Nelson claimed he saw, Eden and Wormley, was wearing a beige or brown-colored jacket when they were arrested at the gas station. *fn3
The evidence found in defendants' car certainly was enough to link them to some sort of theft. But the critical aspect of the State's case was the claim that much more than a theft had occurred. As to that, Nelson's testimony was essential. It was only he who linked the pellet gun *fn4 found in defendants' vehicle to the theft, identifying it as one of the guns he and his friends had been threatened with. Although he insisted both perpetrators "[were] waving the guns towards [his] face," an exhaustive search by the police failed to locate a second gun.
On appeal, defendant Wormley raises the following contentions:
THE IN-COURT IDENTIFICATION BY WILLIAM NELSON WAS SO IMPERMISSIBLY SUGGESTIVE AS TO BE UNRELIABLE AND RESULTED IN THE SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION.
THE LIMITATION OF THE CROSS-EXAMINATION OF WILLIAM NELSON INFRINGED UPON THE DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.
POINT III. IT WAS ERROR FOR THE COURT TO ALLOW INVESTIGATOR KOTLARZ TO TESTIFY AS AN EXPERT ON FIREARMS.
IT WAS ERROR FOR THE COURT TO FAIL TO CHARGE THE LESSER-INCLUDED OFFENSE OF THEFT.
THE VERDICT WAS AGAINST THE WEIGHT OF ...