On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-02-0362.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2007
Before Judges R. B. Coleman and Gilroy.
Following a remand, defendant Damon Sorenson was retried before a jury that found him guilty of first degree robbery, N.J.S.A. 2C:15-1 (count one), and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three). As a result of an earlier trial conducted in October 2002, a jury had found defendant not guilty of second degree aggravated assault, N.J.S.A. 2C:12-1b(1), charged in count two of the original Indictment No. 02-02-1362. On his appeal from the judgment entered after the first trial, we agreed with defendant that he was entitled to a new trial on counts one and three because the jury might have been unfairly led to believe that defendant had an obligation to produce witnesses to corroborate his claim that he did not resort to force to resist apprehension for shoplifting -- which would elevate the charge to a first degree offense -- but rather that a security guard had attacked and assaulted him. Following the retrial of counts one and three, conducted on December 14, 15, 21, 22 and 23, 2004, the jury again found defendant guilty on both counts. Defendant appeals the judgment of conviction entered in furtherance of the jury verdict.
At sentencing on February 10, 2005, the court merged counts one and three and sentenced defendant to a prison term of fifteen years, subject to an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On this appeal, defendant raises the following points of asserted error:
POINT I: THE MOTION COURT COMMITTED HARMFUL ERROR BY FAILING TO APPLY A "TOTALITY OF THE CIRCUMSTANCES ANALYSIS" IN ADMITTING THE DEFENDANT'S STATEMENTS INTO EVIDENCE.
POINT II: THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS CHARGE TO THE JURY ON ROBBERY BECAUSE IT FAILED TO INSTRUCT THE JURY ON "CAUSATION" AND BECAUSE IT FAILED TO RELATE THE LAW TO THE FACTS OF THE CASE (NOT RAISED BELOW).
POINT III: THE "PRESUMPTIVE" FIFTEEN (15) YEAR SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE ARMED ROBBERY ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON*fn1 AND STATE
(A) IMPOSITION OF A SENTENCE IN EXCESS OF THE STATUTORILY AUTHORIZED MINIMUM SENTENCE OF TEN (10) YEARS ON THE DEFENDANT'S CONVICTION FOR A FIRST DEGREE CRIME WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.
(B) IMPOSITION OF THE THEN-PRESUMPTIVE FIFTEEN (15) YEAR SENTENCE FOR A FIRST DEGREE CRIME VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
We have carefully considered defendant's arguments in light of the facts developed at trial and in light of applicable law. None of defendant's arguments has sufficient merit to warrant a reversal of the judgment of conviction.
At about 6:00 p.m. on September 27, 2001, Daniel Gibson, a plainclothes store detective at the Value City department store in Ocean Township, observed defendant in the ladies' department of the store and Gibson decided to undertake surveillance of defendant. During the course of this surveillance, defendant was observed with a woman's blouse and a package of men's underwear in his cart, which defendant subsequently placed inside a Value City shopping bag. Carrying the shopping bag, defendant proceeded past eight cash registers and through a set of exit doors into a vestibule area where Gibson confronted him. Although defendant and Gibson disagree as to whether Gibson identified ...