On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-12-2993.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and C.L. Miniman.
On December 23, 2004, a Monmouth County grand jury charged defendant, Donny Reevey, with first-degree use of a juvenile to commit a crime, N.J.S.A. 2C:24-9a (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); second-degree burglary, N.J.S.A. 2C:18-2 (Count Three); fourth-degree theft, N.J.S.A. 2C:20-3a (Count Four); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (Count Seven); and third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a) (Count Eight). Count Four was dismissed prior to trial.*fn1
On the first day of trial, following an evidentiary hearing, the trial judge determined that the victim, Gregory Covington's prior statements to the police were reliable and admissible under N.J.R.E. 803(a). On June 28, 2005, a jury found defendant guilty of Counts One, Two, Three, Seven, and Eight.*fn2 The judge found that defendant qualified for an extended term as a persistent offender, N.J.S.A. 2C:44-3a, however, he imposed an ordinary term of twenty-years with an 85% period of parole ineligibility under the No Early Release Act*fn3 on the robbery conviction. The judge imposed terms of fifteen years on the first-count conviction; ten-years with five years of parole ineligibility on the third-count conviction; five-years with two-and-one-half-years of parole ineligibility on the seventh-count conviction; and eighteen-months with nine-months of parole ineligibility on the eighth-count conviction. Those terms were to run concurrent with one another and with the twenty-year term imposed on the second count. Defendant appeals and we affirm.
The victim, Gregory Covington, gave the following testimony at trial. On July 24, 2004, at approximately 4:00 a.m., he heard a knock at the front door to his apartment in Keansburg. As he opened the door, he saw an individual wearing a ski mask. He immediately shut the door, locked the deadbolt, and went toward his bedroom. Before Covington could make his way into the bedroom, the apartment door was forced open and he was pushed onto his bed. Covington did not see who entered the apartment. While on his knees, with his head and chest facing down on the bed and a cover over his head, Covington felt something on "the back of [his] head" and he was told by a "white guy" that "it was a 'GAT' which is interpreted as a gun." According to Covington, "the white guy asked for money and drugs" and proceeded to remove Covington's bracelet.
Meanwhile, a neighbor had called the Keansburg police and reported a break-in at Covington's apartment. Patrolmen Tiffanie Dill and Wayne Davis responded to the apartment. According to Dill, defendant "came from behind the door swinging both of his arms" at her and Davis. Eventually, the officers "wrestled [defendant] to the ground where he was still combative," causing Davis to administer a burst of Oleoresin Capsicum (OC) spray in defendant's face.
Covington testified that after the police arrived at his apartment he removed the cover from over his head and saw the police "on top of" defendant in the living room while the "white guy" sat next to Covington on his bed and co-defendant Stevens stood by the dresser. Covington stated that the items taken from him that night included two cell phones, several pieces of jewelry, and approximately $400. He had known defendant for about two or three months prior to the incident. On cross-examination, Covington admitted that he used to sell drugs from his apartment and that certain individuals whom he "would sell [drugs to] and get high with . . . would just come in."
Within an hour after the incident, Covington went to police headquarters where he submitted a handwritten complaint. He returned home but later went back to police headquarters and provided Detective Gary Kronenberger with a formal statement. According to Covington's statement, three individuals broke into his apartment and a person by the name of "World" (co-defendant Stevens) pushed him to the end of his bed while "Donny" (defendant) "went in [Covington's] pockets and took [his] money out." He noted in his statement that a "white guy" told him he "had a GAT to the back of [his] head." He also stated, "[t]hen I seen Donny going into the kitchen and World was in the same room looking in drawers, looking under the bed. Then all of a sudden I hear 'freeze, freeze,' then I look up and see Keansburg's finest."
In his statement, Covington mentioned that he had met World twice before, had known Donny for "about a month" and had met the "white guy . . . just one time for about 15 minutes." He told the detective that "World had the black stocking cap, the white guy had a blue do-rag over his face and I'm not sure what Donny had on his face." After completing his formal statement, Covington reviewed the statement, certified that it was truthful, and signed it.
At trial, despite his prior statements, Covington denied having actually seen three individuals enter his apartment on July 24, 2004. He testified that he could only assume one individual was present because only one person spoke to him. While Covington admitted that he saw defendant and co-defendant Stevens in his apartment after the police arrived, he denied seeing anyone who he knew as "World." Covington maintained that he only saw a "white guy" during the commission of the crime and did not actually see defendant or Stevens.
Covington claimed that his prior statements were incorrect because at the time he "was indulging in drinking, smoking, and . . . wasn't in the right frame of mind." He asserted that he drank six or seven beers and ingested about a gram of cocaine, an ecstasy pill, and "a couple of OxyContin." Both Kronenberger and Davis, however, testified that Covington did not appear to be under the influence of any intoxicants, his eyes were not bloodshot, he did not slur his words, he did not have difficulty walking into the room, and he was responsive to questions.
J.H., sixteen-years-old at the time of the offense, testified on behalf of the State and gave ...