On appeal from the Superior Court of New Jersey, Law Division, Hudson County, I-04-06-0903.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Seltzer and C.L. Miniman.
On November 17, 2005, following trial, a jury found defendant, Ricky Darnell Brown, guilty of third-degree aggravated assault against Clinton Jones, N.J.S.A. 2C:12-1b(2) (Count One); second-degree armed robbery of Long Tao Lin, N.J.S.A. 2C:15-1 (Count Six); and the lesser-included offense of aggravated assault of Lin, N.J.S.A. 2C:12-1b(1) (Count Seven).*fn1
Defendant was also convicted of conspiracy to commit robbery against Lin, which was added as Count Ten by amendment during trial. Defendant was found not guilty of unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d (Count Two) and possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Three).*fn2
Defendant was sentenced on February 3, 2006. The judge imposed a five-year term with a two-and-a-half-year period of parole ineligibility on the Count One aggravated assault conviction. A consecutive ten-year sentence with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act,*fn3 was imposed on the Count Six armed robbery conviction and a concurrent ten-year sentence was imposed on the added Count Ten conspiracy to commit robbery conviction. The Count Seven aggravated assault conviction was merged with the Count Six robbery conviction. Defendant appeals and we affirm the judgment of conviction in all respects, but remand to correct the sentence to reflect the merger of the Count Six robbery and Count Ten conspiracy convictions.
We restate the facts relevant to this appeal. On January 19, 2004, Clinton Jones resided in apartment number three on the second floor of a six-unit apartment building located at 150 Saint Paul*fn4 Avenue in Jersey City. At the same time, defendant and co-defendant Fuller resided in apartment number two on the first floor. Some time between 7:00 and 8:00 p.m., Jones' roommate let defendant into the apartment. Defendant asked Jones for a Chinese food menu. After giving defendant the menu, defendant asked Jones for his cell phone. When Jones refused to give defendant his cell phone, defendant became aggressive. According to Jones, defendant started to make a threat to trash my room and then he proceeded to. Then he pulled out a knife and then he started throwing my CD's at the wall and said if I came any closer to protect my property he would slice me. And I did protect my property and he cut me on my arm.
Using a five-inch "foldout knife," defendant cut Jones' right arm and his forehead. Defendant then "pulled a gun" from his waistband, pointed it at Jones' head, and threatened to shoot. Jones thought the gun was real. Defendant then left the apartment.
Jones did not seek medical attention. Instead, he went to the bathroom to wash his cuts. An hour or two later, defendant returned to Jones' apartment, entered through the opened door, and again asked for the cell phone. Jones, who felt intimidated and fearful, gave the phone to defendant. Defendant returned the phone approximately fifteen minutes later. Jones could see from the phone's memory that defendant had made a call.
Lin worked as a food deliveryman for the Great Wall Restaurant. While making a delivery at 146 Hopkins Street at approximately 10:30 p.m., he was confronted by three men. One of the individuals wore a black jacket, another wore a yellow jacket, and the third wore an army camouflage jacket. Two of the men were masked. The man in the yellow jacket pointed a gun at Lin's face. Lin gave the man the food. When Lin attempted to use his cell phone to call the police, the man in the yellow jacket smashed Lin's face with the gun. The three men pressed Lin to the ground, kicked and beat him, and took his wallet.
Lin was hit more than ten times in his back and waist. At the time, Lin thought the gun looked fake.
The three men then ran in different directions. Lin first testified that he chased the man in the yellow jacket to "150 St. Paul's Avenue" where he encountered three persons, one who looked "Indian" and two who looked "Hispanic." He asked the men to call the police. He did not stop chasing until he got to 170 St. Paul's Avenue where the man with the gun "hit across . . . some fences and ran away." Lin returned to Hopkins Street where he met and gave a description of the three men to the police. Lin identified pictures of his injuries and testified about his injuries to his face and waist. According to Lin, the men robbed him of $450, $100 of which was his own money. They also took his driver's license, work permit, and cell phone.
Between 10:30 and 10:45 p.m., Sergeant Wally Wolfe and a team of plainclothes officers heard the report of an armed robbery in progress while they were conducting a nearby narcotics surveillance. Sergeant Jack Redman, Officer Paul Matos, Officer Jay Fiore, and Officer Sean Cavanaugh were working with Wolfe. Wolfe directed his men to "go into the perimeter." Wolfe went to the scene where he spoke with Lin who described the clothing the men were wearing and indicated that he gave chase after which the men entered the doorway at 150 St. Paul's Avenue. According to Wolfe, Lin told him one of the men wore a black nylon jacket, one a camouflage jacket, and the third a yellow nylon jacket. At trial, Lin answered, "No" when asked whether he remembered telling the police that he saw the men run into "150 St. Paul Street."
As Wolfe and his squad entered the apartment building at 150 St. Paul's Avenue, they found money on the floor in the hallway. The "money trail" led them to an open door of defendant's and Fuller's apartment. It continued through the apartment into a bedroom. The apartment was unoccupied. In the bedroom, Wolfe found a black nylon jacket on the bed. The jacket matched Lin's description of a jacket worn by one of the perpetrators. It was cold to the touch, causing Wolfe to believe that "this might be the coat" since it was January and "in the teens" outside. Redman found an open window and saw footprints in the "old snow." He believed that "probably someone had entered and taken off out the window."
"Protruding from the pocket" of the black nylon jacket was money, a wallet "with a picture ID of an Asian male," a New York State driver's license, keys, and a broken cell phone. A yellow jacket was found hanging on a hook in the bedroom closet. While the police were searching the apartment, a woman entered and identified herself as Mrs. Bonner, a supervisor for Volunteers of America working with the Division of Youth and Family Services. She told Wolfe that apartment number two was "a DYFS apartment" assigned to Fuller.
Officer Redman went to the second floor where he knocked on the door of apartment number three. A "young . . . 16-year-old female" opened the door. Redman asked the girl if the residents of the first floor apartment were there. After hearing her response, he "immediately entered the apartment" and asked for back-up.
Meanwhile, Jones was "just soaking" in the bathroom when he heard "a commotion coming up the stairs and then people barged in [his] door." Jones' roommate had left the door unlocked. When Jones looked out, he saw defendant and Fuller removing the air conditioner. Jones went back into the bathroom. About ten minutes later, Jones heard police sirens. Ten to fifteen minutes after that, Jones heard the police knock on the back door located next to the bathroom. He opened the door and stepped into the hall. According to Jones, defendant, Fuller, Jones' roommate, "the girl from across the hallway" and "the other boy" were in the apartment.
As Redman entered, he found four men sitting in the front room and asked for the residents of the first floor by name. One male identified himself as Fuller, stated that he lived on the first floor and that his black jacket was on the bed. Defendant was also there. The men were patted down to check for weapons and then "secured" to see if the victim could identify them. Cole was found hiding under a bed, wearing a camouflage jacket with "fresh, wet blood all over his coat."
After getting Fuller's name and finding Cole under the bed with blood on his jacket, Wolfe believed he may have had the right people. He sat everybody down and read them their Miranda*fn5 rights. According to Redman, Jones "appeared to be scared out of his mind" and directed him to the fire escape. Redman moved a metal-like plant holder out from the window and found a bag of Chinese food sitting on the fire escape. The food was "still warm" and the bill was stapled to the bag. $182 in cash and a stick were found under the couch in the living room.
Redman described his interview with Jones:
[He] was not very easy to speak with. He was really scared out of his mind and the fact that I -- that the evidence was on the fire escape, it took him quite a while to give up that information alone. It was imperative to him that he speak to his father first, before he'd cooperate fully with the police. I was the officer on the scene who spoke with him, I think, ...