On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 02-03-0531-I.
Before Judges Kestin, Alley and Falcone.
The opinion of the court was delivered by: Alley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2004
On March 5, 2002, in indictment number 0531-03-2002, a Hudson County Grand Jury charged defendant, Spencer Lee Horne, and his co-defendant, Rickey Weaver, with having committed the following offenses in Jersey City on December 30, 2001: first degree armed robbery, N.J.S.A. 2C:15-1 (Count One), and fourth degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e) (Count Two).
On August 7 through August 12, 2002, a jury tried defendant and Weaver on these charges. When defendant did not appear for trial, he was tried in absentia. At trial, the alleged victim, Michael Guest, identified Weaver and the toy gun, as well as a photograph of defendant. Officer Goodman also identified defendant's photograph at trial. Guest stated that he had"no doubt" that it was defendant and Weaver who had robbed him. Guest also identified two photographs of the vehicle used in the robbery, as well as his signature on both photographs. Neither defendant nor Weaver presented any witnesses or evidence on their behalf. On August 12, 2002, the jury found defendant and Weaver guilty of first-degree armed robbery and fourth-degree possession of an imitation firearm for an unlawful purpose.
On December 17, 2002, a Hudson County Grand Jury charged defendant in indictment number 2777-12-2002 with having committed the following offenses on or about July 26, 2002: third-degree burglary, N.J.S.A. 2C:18-2(a) (Count One), and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (Count Two). On February 13, 2003, defendant entered a plea of guilty to the charge of third-degree burglary in indictment number 2777-12-2002, as part of a plea bargain in which the State agreed to recommend dismissal of Count Two of the indictment.
On February 13, 2003, defendant was charged in an accusation with third-degree bail jumping, N.J.S.A. 2C:29-7. That same day, he pled guilty to that charge and, when pleading guilty, he admitted that he had been provided notice in court to appear for his trial that was scheduled to begin on August 5, 2002. Defendant acknowledged that the judge had informed him that if he did not appear, the trial would proceed without him. Defense counsel also stated on the record that defendant had actually been handed the notice informing defendant to appear on the scheduled date, and that the notice was signed by the judge, both attorneys, and defendant.
At sentencing on March 13, 2003, on indictment number 0531-03-2002, the State moved to have defendant sentenced to an extended term for the armed robbery conviction. Denying the State's motion, the court merged Count Two into Count One, and sentenced defendant to a twenty-year prison term with a seventeen-year period of parole ineligibility, as required by the"No Early Release Act," N.J.S.A. 2C:43-7.2, (NERA), to be served concurrently with the aforementioned sentences. The court also imposed the required five-year period of parole supervision, and all statutorily mandated fines and penalties. On the same day, the court sentenced defendant to concurrent five-year sentences for the third-degree convictions of burglary and bail jumping, each with a two-and-a-half year period of parole ineligibility.
The circumstances of the crimes for which the jury convicted defendant were straightforward. At approximately 1:00 a.m. on December 30, 2001, Michael Guest was walking on Linden Avenue enroute to Vincent's Pizzeria in Jersey City. Prior to arriving at the pizzeria, Guest observed two people in a black car, either a 1985 Grand Marquis or 1985 Crown Victoria, pull up to him with its lights off.
The passenger, later identified as co-defendant, Rickey Weaver, left the vehicle with an object in his hand that appeared to Guest to be a small black handgun. Weaver approached Guest and said,"give me everything." The driver of the vehicle, later identified as defendant, also got out and approached Guest. Defendant and Weaver then proceeded to search Guest's clothing by patting his pants pockets, reaching into his jacket pockets, and pulling his pants up to view inside his socks. Unsuccessful in the search, Weaver questioned Guest as to what he was doing on the street without any money. Defendant and Weaver then walked back to their vehicle and drove off.
After this incident, Guest proceeded to his home, which was approximately a block away, to call the police. He provided the police descriptions of both defendant and Weaver, as well as a description of the car, and informed the police that they were armed with a handgun. As the result of a radio dispatch, Officer Anthony Goodman began to follow a black Grand Marquis for several blocks, noting that it had two black male occupants. With the assistance of a marked patrol unit, Officer Goodman stopped the Grand Marquis. As Officer Goodman approached the vehicle, he observed the passenger crouch down. The officers ordered both the driver and the passenger, subsequently identified as defendant and Weaver, to exit the vehicle, and proceeded to search them. Officer Goodman noted that Weaver was wearing a knitted hat, and that defendant appeared much heavier than Weaver. The officer also observed that both suspects were wearing dark clothing. Officer Goodman looked inside the Grand Marquis and saw the handle of what appeared to be a handgun on the floor of the front passenger side. The officer then seized the object and determined that it was a toy gun.
The police brought Guest to police headquarters to determine whether defendant and Weaver were the men who were involved in the earlier encounter. Guest remained in the back seat of a patrol car parked across the street while defendant and Weaver were brought into headquarters. Guest then identified defendant and Weaver as the two men who had robbed him, and the Grand Marquis as the vehicle that was used. He also identified the seized toy gun as the implement displayed by Weaver. Both defendant and Weaver were arrested and charged with first-degree armed robbery and fourth-degree possession of an imitation firearm for an unlawful purpose.
On July 26, 2002, while awaiting trial on bail for the December 2001 armed robbery, defendant broke into a van in North Bergen and removed a toolbox. Neither the van nor the toolboX belonged to defendant, nor did he have permission to enter the van.
Defendant contends in his brief ...