On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Somerset County, Indictment No. 04-08-0558.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.S. Fisher and Messano.
After a jury trial, defendant Tysean Clarke was found guilty of second-degree conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2a, N.J.S.A. 2C:15-1a(2), and first-degree armed robbery in violation of N.J.S.A. 2C:15-1b. After defendant's motion for a new trial was denied, the trial judge sentenced him to a term of imprisonment of sixteen years on the armed robbery conviction with an 85% parole disqualifier under the No Early Release Act (NERA) and an eight year term of imprisonment on the conspiracy conviction. Both sentences were to run concurrent to each other and concurrent to a sentence defendant was serving on other charges. The appropriate statutory penalties, as well as restitution in the amount of $175, were also imposed.
Defendant raises the following points for our consideration.
TESTIMONY REGARDING CO-DEFENDANT'S STATEMENTS OFFERED AT TRIAL WITHOUT CALLING THAT PERSON AS A WITNESS ARE HEARSAY AND A VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHTS.
THE COURT BELOW ERRED IN NOT CHARGING THEFT AS A LESSSER-INCLUDED OFFENSE.
THE COURT BELOW SUBMITTED AN IMPROPER CHARGE OF ACCOMPLICE LIABILITY TO THE JURY DENYING THE DEFENDANT A FAIR TRIAL.
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THAT TRIAL COUNSEL'S PERFORMANCE WAS INADEQUATE AND SUBSTANTIALLY PREJUDICIAL TO THE DEFENDANT.
After carefully considering these contentions in light of the record and applicable legal standards, we reverse.
The evidence at trial revealed that on June 24, 2004, Nicole Hoffman and Tonya Wood were working at the Ulta cosmetics store in Watchung. At approximately 9:40 p.m., Wood went outside to smoke a cigarette and Hoffman was working at the computer in the reception area. She heard Wood come back into the store and believed she had locked the door. However, shortly thereafter, Hoffman thought she heard someone running through the store.
As she looked up from her work, a man wearing a mask and holding a gun ran towards her, told her to get down on the floor, and then began to drag her toward the front of the store where a safe was located. As she was being dragged, Hoffman saw two other men run past her toward the rear of the store.
The armed man demanded Hoffman open the safe, which she did. She noticed that the handgun made a rattling noise as the man waived it, and she thought to herself that it could be fake. One of the other men came to the safe and together the two men removed all the money. The men then asked Hoffman if the store had a video surveillance system, and, when she indicated it did, the men walked her to the back office where the system was located. There, they took the VCR tape out of the surveillance recording system and ripped out the phone and fax lines from the wall.
The men handcuffed Hoffman and Wood to a filing cabinet and left. Hoffman was able to place a new tape in the surveillance system and started it recording again. She was able to call the police from her cellphone.
Police Officer Andrew Hart, Detective William Kelly, and Detective Sergeant Timothy Wenzel of the Watchung Police Department were among the first officers at the scene. Kelly was able to free Hoffman and Wood from their handcuffs and the two women were transported to police headquarters to give formal statements. The door to the Ulta store revealed no signs of forced entry and, when Wood indicated she could not remember if she ...