On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-05-0497.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Weissbard and Graves.
Defendant Kenneth Nero appeals from his conviction on one count of first-degree robbery, N.J.S.A. 2C:15-1 (count one), and one count of simple assault as a lesser-included offense of second-degree robbery, N.J.S.A. 2C:12-1a (count two). On July 15, 2005, defendant was sentenced to a thirteen-year prison term on count one, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a consecutive six-month jail term on count two.
The facts adduced at trial were as follows. On March 8, 2003, after attending a party in Paterson, Rakema Nelson and her friend Travell Zimmerman stopped for a soda at American Fried Chicken, a 24-hour restaurant on Broadway. It was about 3:40 a.m. when they arrived. The restaurant was small and fairly crowded despite the late hour. While Nelson waited in line with her pocketbook open in anticipation of her purchase, Zimmerman struck up a friendly conversation with a man in the restaurant.
At that point, Nelson testified to the following version of events:
I was approached by someone. We was just saying that -- I don't really remember what he was saying in the beginning. But he was like what's in your bag? He asked me what was in my bag. He had my bag, but I don't -- like I just wasn't really paying him no attention. I was like whatever. And then he was like give me your shit. And I'm like what?
And he's like I'll take it. And he's motioning and says waist, like do you know what I have right here? And that's when my girlfriend stepped in. And she's like what are you doing? Get off of her. And he's like -- he turned to her. He's like I'll take your shit too. You don't know what I got right here and he's holding his waist. And she's like wait a minute. Just go ahead. Like she's pushing him, like just go. And then he pushed her against the table and he went -- like he hit her. And we were like trying to get him off. And we both were hitting him, trying to get him off of her. And we -- once we were leaving out the store, he was -- he bumped into another person, which is why his attention was taken off of us. He got in a fight with the guy who was walking in. So, that's how I ended up being able to call the Police.
Further on, she testified:
I just really didn't pay him any attention and I like proceeded to get to the window. And he had his hand on the bag, like on the strap. And I'm like what are you doing? And he's like do you know what I got right here? I'll take your shit.
Q: When -- when he said, do you know what I got right here; what did you take -- what --what did you think?
A: Like I just wasn't really thinking anything of it. I was just trying to ignore him, because I didn't really know what he was doing. But he wouldn't let go of my purse.
Q: Were you in fear that perhaps he had a weapon?
Q: And that was -- and why did you think that?
A: Because he was motioning to his waistband, asking me if I knew what he had.
Q: So, at this point, he -- did he still have his hand ...