On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-09-1758.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Messano.
Defendant Reginald Harvey appeals from a judgment of conviction entered on October 29, 2004 after a jury found him guilty of first degree robbery, N.J.S.A. 2C:15-1; second degree conspiracy, N.J.S.A. 2C:5-2;*fn1 fourth degree assault with a firearm, N.J.S.A. 2C:12-1b(4); second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and third degree possession of a handgun, N.J.S.A. 2C:39-5b. Defendant was sentenced to an aggregate term of ten years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We reverse and remand for a new trial.
The facts giving rise to these charges are as follows. On May 18, 2003, at about 2:30 p.m., two individuals -- one later identified as defendant -- went to BJ's Market in Pleasantville and asked for a certain brand of cigar. The store clerk, Ani Shahriyar, recognized defendant as a regular customer in the store. When Shahriyar asked defendant for age identification, the second individual pointed a black handgun at Shahriyar and told him to give them the money. Defendant took the money from the cash register and both individuals ran out of the store.
Shahriyar locked the store and called the police by activating a silent alarm button. He advised the police that he could identify defendant as a customer of the store. On May 22, 2003, however, Shahriyar saw defendant outside of BJ's and called the police. Detectives Mark Porter and Sergeant Jose Ruiz responded. Defendant was picked up and transported to headquarters. After defendant's father gave permission for him to be questioned, defendant claimed that he knew nothing about the robbery. He was released and the investigation continued.
Shahriyar gave a taped statement and, from photos, identified Franz Boyd as the individual who pointed the gun at him during the robbery and defendant as the other person involved.
At trial, defendant's mother testified that he must have been at school that day because he was on probation and wearing an ankle bracelet, and the school security officers "probably" had called to inform her that her son was out of dress code that day. In rebuttal, however, Atlantic County Corrections Officer Robin Warker testified that defendant had been released from a juvenile detention diversion program involving a monitoring ankle bracelet on January 10, 2003 and was not in the program in May 2003 when the robbery occurred.
In this appeal, defendant argues:
REVERSAL IS REQUIRED AS A RESULT OF THE TRIAL COURT'S FAILURE TO SUA SPONTE REOPEN THE CASE OR PROPERLY CHARGE THE JURY AFTER THE JURY DISCOVERED THE PHOTO ARRAY CONTAINED A PICTURE TAKEN ONE MONTH AFTER IT WAS ALLEGEDLY SHOWN TO STORE CLERK SHAHRIYAR.
THE PROSECUTOR COMMITTED SEVERAL ACTS OF MISCONDUCT DURING HIS OPENING AND CLOSING ...