On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 2002-11-1493.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 28, 2007
Before Judges Cuff, Winkelstein and Baxter.
On November 7, 2002, a Burlington County Grand Jury returned a seven-count indictment, Indictment No. 2002-11-1493-I, charging defendant Larry Person and his brother Lyle Person with first-degree robbery, contrary to N.J.S.A. 2C:15-1a(1) (count one); two counts of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (counts two and three); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count four); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b (count five); first-degree conspiracy, contrary to N.J.S.A. 2C:5-2 (count six). The indictment also charged defendant, but not his co-defendant, with second-degree possession of a firearm by a convicted person, contrary to N.J.S.A. 2C:39-7b (count seven).*fn1
Defendant's first trial ended in a mistrial, and he was retried. At the close of the State's case, both defendants moved for a judgment of acquittal pursuant to Rule 3:18-1; the court denied the motions. The jury found defendant guilty of all charges, except count seven.
At sentencing, the judge denied the State's request to impose an extended term. Following merger of counts four and six*fn2 with count one, the judge imposed a sentence of eighteen years imprisonment on count one, eight years imprisonment on count two, and eight years imprisonment on count three. Each term is subject to an eighty-five percent period of parole ineligibility. The judge also ordered that each sentence run consecutive to the other. The aggregate term is thirty-four years with a twenty-eight year, eight-month period of parole ineligibility. The judge also imposed a concurrent four-year "flat" term on count five.
On November 5, 2000, Maxim Samsonov and Sergei Minion were working at a Texaco gas station in Willingboro. Samsonov was working in the store on the premises, while Minion operated the pump. At some point that evening, a young black man, later identified by Samsonov in a police photo array as co-defendant Lyle Person, entered the store, purchased a cigar and requested pornographic magazines. Samsonov went to a side room to retrieve the magazines. When he returned, the man was gone and another man was standing behind the cash register. The other man, later identified as defendant Larry Person, had opened the cash register and was removing money. He wore a black jacket,*fn3 blue jeans and a black hat "with some holes where the eyes are supposed to be." Samsonov was unable to see his face.
When Samsonov approached the register, defendant told him "don't move." For the first time, Samsonov noticed a gun in defendant's hand. Samsonov took hold of defendant's hands and attempted to "prevent him from shooting," but defendant shot Samsonov once in the shoulder. Minion entered the store, pulled defendant from Samsonov, and threw defendant to the floor. Defendant and Minion began to struggle. At some point, the fight moved into the garage adjacent to the store. Samsonov heard three gunshots from the garage and later learned that defendant had shot Minion in the chest and stomach.
The entire scuffle between Minion and defendant lasted approximately a minute. At some point, Samsonov stepped on defendant's hand, removed the gun from defendant and threw it away from the area of the fight. Defendant eventually crawled out of the store, without his hat, sweatshirt, and a sneaker. Though he never saw defendant's face, Samsonov was able to determine that the shooter was an African-American with black braided hair.
Samsonov called the police. Officers from the Burlington County Prosecutor's Office and the Willingboro Police Department arrived on the scene, took photographs and secured into evidence the items defendant left behind. Samsonov was taken to the hospital, where he remained for a week or two.
At trial, Samsonov*fn4 was shown photographs of a sweatshirt and hat, which he identified as the ones worn by the man who opened the register. On cross-examination, when shown an exhibit that the State advanced as the hat worn by the shooter, Samsonov stated that he did not see any eye holes and asked "[i]s this the same hat? . . . I'm not sure it [is]. . . ." The hat shown to Samsonov at trial was brown; Samsonov recalled a black hat.
At trial, Detective William McDowell of the Burlington County Prosecutor's Office, who took photographs of the crime scene, noted that one photograph depicted "a close up view of the brown hat that was found right by the sweat shirt." He testified that though the hat "looks black," it was in fact brown, and fluorescent lighting often changes the appearance of colors. He also identified the hat in court, describing it as brown in color, and confirmed it was the same hat depicted in the photograph. He was able to identify the hat because his handwriting was on the outside of the plastic bag in which it was kept.
After securing the hat at the scene, McDowell placed it into an "evidence vault" until he removed it to take it to the State Police Central Crime Laboratory. McDowell also testified that he took "buccal" swabs from the inside of defendant's mouth pursuant to a search warrant. These swabs were used as a "control" in testing the clothing recovered from the scene for the presence of defendant's DNA. McDowell brought these swabs and the hat to the State Police lab on June 19, 2001. The sneaker and sweatshirt recovered at the crime scene were transported to the State Police lab by Burlington County Prosecutor's Office Detective Kimberly Bogie on May 10, 2004.
At trial, State Police Central Crime Lab forensic scientist Raymond Klama testified by videotape as an expert in the field of biological fluids and biological/biochemical stain analysis. He testified that he swabbed the inside of the hat, sweatshirt and sneaker recovered at the scene, to collect skin cells that could be tested by the lab's DNA Unit. He had also received the "buccal control swabs." He testified that at the time of the swabbing, he did not know if the swabs picked up any testable material. He also explained that there was a better chance of recovering testable skin cells if the item swabbed had come into direct contact with the skin. Sneakers very rarely yield such samples because most people wear socks, which act as a barrier preventing the transfer of cells. Likewise, an undershirt can impede the collection of cells from the inside of an outer shirt.
Klama also conducted testing that revealed blood stains on the outside of the sneaker and sweatshirt. He cut the piece of cloth containing the bloodstain from the sweatshirt and placed it in an envelope so the DNA Unit could test it. Prior to swabbing the hat, Klama removed several hairs of different colors, types and lengths from inside it and saved them for future testing. The hairs would be examined only if the DNA Unit could not obtain a full DNA profile from the samples produced by the swabbing. The hair was never analyzed.
At trial, Christopher Huber, a forensic scientist with the New Jersey State Police DNA Laboratory, testified as an expert in DNA testing and analysis. He tested the submissions from the State that had been prepared by Klama. He provided a detailed explanation of the DNA testing process to the jury.
Huber then opined that "Larry Person [was] identified as . . . the major contributor of the DNA profile found" inside the hat. The sample from the inside of the hat, which matched the control sample taken from defendant, "occurs in approximately 1 in 814 billion of the African American population, 1 in 885 billion in the Caucasian population, and 1 in 3.3 trillion of the Hispanic population." In a "hypothetical world of 814 billion African-Americans," "[w]e expect to see that profile once." Additionally, defendant could not "be excluded as being a partial contributor to the mixed DNA profile found" on the outside of the hat. The number of people who could not be excluded as having contributed that profile were one in 100,000 of the African-American population, one in 68,800 of the Caucasian population, and one in 87,900 of the Hispanic population.
Huber tested the blood stains on the left and right cuff of the sweatshirt and on the sneaker, and excluded defendant from all three stains. Huber also determined that he could not exclude defendant as a contributor to the sample from the inside of the sneaker. Defendant's DNA profile was present on the collar of the sweatshirt; the specimen from the collar "occurs in approximately one in 2,100 of the ...