On appeal from the Superior Court of New Jersey, Law Division Passaic County, Docket No. 98-06-0686-I.
Before Judges Pressler, Wallace, Jr., and Hoens.
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 28, 2003
A jury found defendant Thomas U. Figueroa guilty of second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, and first degree armed robbery, N.J.S.A. 2C:15-1. After denying defendant's motion for a new trial and the State's motion to impose an extended sentence, the trial court found the Graves Act, N.J.S.A. 2C:43-6(a), applied. The court merged the two offenses and imposed a sentence of twenty years with a ten year period of parole ineligibility on the robbery offense. On appeal, defendant contends the trial court erred (1) in sentencing him pursuant to the Graves Act, which defendant claims is unconstitutional on its face or as applied to him; and (2) in admitting the redacted November 20, 1997 statement because its admission is contrary to the holding in State v. Covell, 157 N.J. 554 (1999), and the prejudicial effect outweighed its probative value. We affirm.
In the morning of September 24, 1997, co-defendant James Anthony approached defendant about driving the get-away vehicle for a jewelry store robbery he and co-defendant Timothy Sturdivant planned. Defendant agreed. At approximately 9:45 a.m., defendant and Anthony met Sturdivant, who had rented a burgundy minivan for the robbery. They drove to the Jewel Box jewelry store at 204 Jefferson Street in Passaic. Anthony and Sturdivant took a gym bag from behind the seat, retrieved .25 caliber handguns and black masks, and exited the van. Defendant moved to the driver's seat as Anthony and Sturdivant walked toward the store. Anthony and Sturdivant entered the store where Alan Kalupa and Ana Pina were preparing for customers and instructed them to get on the floor. Pina immediately got down on the floor and covered her face, while Kalupa pressed a silent alarm to the police before getting down on the floor. One of the gunmen put his foot on Kalupa's back and placed his gun to Kalupa's head.
The gunmen emptied the cash register, removed money from Kalupa's pockets, and took jewelry from the display cases which they placed in a bag. Before leaving the store, one of the gunmen threatened to kill Kalupa if he got up. As soon as the gunmen left, Kalupa called the police. He estimated the gunmen took approximately $60,000 worth of jewelry. Neither he nor Pina was able to identify the gunmen.
Detective Stewart Kennedy of the Passaic Police Department investigated the robbery. The investigation led the police to defendant, Sturdivant, and Anthony. On November 12, 1997, the police arrested Sturdivant at the Econo Lodge as he was about to enter the automobile of his girlfriend, Beatriz Maldonado. A search of the car revealed a .25 caliber semi-automatic handgun.
The next day, the police arrested defendant at his home. After receiving his Miranda *fn1 rights, defendant agreed to give a statement. He confessed to being the driver in the September 24, 1997 robbery, outlined his participation, and implicated Anthony and Sturdivant as the two gunmen who entered the store. As a result of defendant's cooperation, Detective Kennedy recommended that defendant's bail be set at $50,000.
On November 20, 1997, defendant was transported to Passaic Police headquarters to appear at Municipal Court on outstanding warrants. While there, he asked to speak to Detective Kennedy.
The detective again informed defendant of his rights, and defendant gave a second statement. He stated that Anthony told him that he and three other guys robbed the Wesola Tavern in Passaic at gunpoint where he shot the barmaid. Anthony did not tell him what kind of gun was used, but defendant had previously seen Anthony with a .25 caliber automatic. Further, defendant stated that Anthony, Sturdivant, and a young guy with dreadlocks had robbed another bar. Defendant denied any involvement in these two robberies.
Joseph Sullivan, an accountant for American Distribution Resources, defendant's employer in September 1997, testified that payroll records showed that defendant did not work on September 24, 1997.
Tammy Neal, an employee at National Car Rental in Newark, testified that she rented a burgundy minivan to Maldonado on September 19, 1997, and she returned it the evening of September 24, 1997.
Maldonado testified that Sturdivant was her boyfriend in 1997, and she knew defendant and Anthony. She acknowledged she rented a burgundy minivan on ...