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State v. Rosebrough

August 6, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ASSAMAD ROSEBROUGH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-05-00491.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 8, 2007

Before Judges R. B. Coleman and Gilroy.

Defendant Assamad Rosebrough, along with co-defendant Ronald Williams, was charged in Union County Indictment No. 04-05-00491 with the following crimes: first degree robbery, N.J.S.A. 2C:15-1 (count one); second degree robbery, N.J.S.A. 2C:15-1 (count two); third degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); third degree possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); third degree receiving stolen property/auto, N.J.S.A. 2C:20-7 (count six); and third degree receiving stolen property/handgun, N.J.S.A. 2C:20-7 (count seven). Defendant was additionally charged with fourth degree resisting arrest, N.J.S.A. 2C:29-2(a) (count eight).

Following a trial by jury in June 2005, defendant was found guilty of first degree robbery (count one); third degree aggravated assault (count three); second degree possession of a weapon for an unlawful purpose (count four); fourth degree joyriding as a lesser-included offense of count six; and fourth degree resisting arrest (count eight). Defendant was acquitted of all remaining charges.

On July 15, 2005, defendant appeared for sentencing. After weighing the aggravating and mitigating factors, the court merged counts two, three and four with count one and sentenced defendant to a term of fifteen years subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA). The judge then imposed a consecutive sentence of nine months on count seven and another consecutive term of nine months on count eight.

Defendant raises the following issues on appeal:

POINT I: THE COURT'S ACCOMPLICE LIABILITY INSTRUCTIONS DENIED THE DEFENDANT A FAIR TRIAL BY FAILING TO INFORM THE JURY THAT DEFENDANT, AS AN ACCOMPLICE, COULD BE GUILTY OF LESSER INCLUDED OFFENSES (Partially Raised Below).

POINT II: THE SENTENCES ON COUNTS SEVEN AND EIGHT SHOULD HAVE BEEN IMPOSED CONCURRENTLY TO EACH OTHER AND TO COUNT ONE.

After careful consideration of defendant's arguments in light of the facts and applicable law, we affirm defendant's convictions and sentence.

On September 3, 2003, at about 10:00 p.m., Orhan Simsek, an attendant at Brother's Amoco Gas Station on Route 22 West in Union, was in the attendant's booth. Simsek was approached by two men, later identified as defendant and Williams, who entered his booth and demanded money. Williams knocked Simsek to the ground with a blow from a handgun. Simsek gave the two men approximately $300 from the day's proceeds. With money in hand, the men left.

As off-duty Hillside Police Officer, Brian Wilson, was driving past, he noticed a black male walking towards the attendant's booth, pulling a ski mask over his face. Wilson pulled into an adjoining parking lot so that he could continue to observe the station and notified the Hillside Police of his observations. Defendant and Williams exited to the lot from which Wilson was watching and got into a gray Nissan Altima. The Altima, with Wilson following, pulled onto Route 22 and made a U-turn and headed east. Wilson continued to follow the vehicle until a marked unit from the Hillside Police arrived. Once the Altima entered onto Long Avenue, the police attempted to effectuate a stop, but a high-speed chase resulted that ended at a dead-end street. Defendant then abandoned the vehicle and attempted to flee, but he was apprehended by a Union Police Officer and arrested.

Defendant first argues that the court did not adequately convey to the jury that it could find him guilty of a lesser crime ...


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