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State v. Malloy

August 7, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM B. MALLOY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 99-11-1080.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 28, 2007

Before Judges A. A. Rodríguez and Collester.

Defendant William B. Malloy appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

Defendant was convicted, following a jury trial, of three counts of first degree armed robbery, N.J.S.A. 2C:15-1a(1); third degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d. On November 16, 2001, Judge Donald R. Reenstra imposed the following sentences: on count one of the robbery convictions, an extended thirty-year term with a NERA*fn1 parole disqualifier; on the other two armed robbery convictions, twenty-year term with a NERA parole disqualifier; on the third degree crime, a five-year term; and on the fourth degree crime, an eighteen-month term. All to run concurrent to the first sentence.

We affirmed on direct appeal, State v. Malloy, No. A-2725-01T4 (App. Div. October 6, 2003), certif. denied, 179 N.J. 311 (2004), but remanded for correction of sentence. We held that the NERA period must be limited to the twenty-year ordinary term for a first degree crime, not the thirty-year extended term. We ordered that the two possessory convictions be merged with the armed robbery convictions.

The charges arise from the armed robbery of an ophthalmologist's office in Passaic. The facts are set forth in detail in our opinion on direct appeal. This is a summary of the proofs presented by the State. The witnesses in the office testified that at about 3:30 p.m. on Friday, August 13, 1999, a masked intruder, later identified as defendant, entered the premises on the ground floor of a professional building on Gregory Avenue. The four people were present: Dr. Mitchell Vogel, Jeffrey Vogel, Theresa Quintana and Pamela Simmons. Jeffrey Vogel and Quintana were working at the reception desk when defendant, wearing a ski mask and gloves, stormed through the office door while another man stood watch outside. Defendant wielded a knife and demanded money. He pushed Jeffrey Vogel to the floor, poking him in the side with the knife while he struggled to remove a wallet from Vogel's back pocket. Defendant pointed to the petty cash drawer, which turned out to be empty. Then, defendant pointed the knife at Quintana and demanded money.

Simmons, who was in the filing room out of defendant's presence, quietly closed the filing room door, turned off the lights and dialed 9-1-1. Defendant demanded Dr. Vogel's wallet. Dr. Vogel said it was in his office. Defendant pressed the knife into the doctor's back and pushed him to the back office. As Dr. Vogel searched his desk for his wallet, defendant cut Dr. Vogel's shirt with the knife and demanded the money, "or I'll kill you." Dr. Vogel handed over his wallet and a personal electronic organizer. In the meantime, Quintana hit the emergency call button on the front desk to alert the police. Defendant ran out of the building.

Detective Kenneth Williams responded to the office, where the robbery took place. There, he spoke with the victims. He radioed a description of the robber. Contemporaneously, Detective Luis Guzman was driving in an unmarked police car when he received a radio transmission that a robbery was occurring on Gregory Avenue. He saw defendant, who appeared to act suspicious, walking a short distance from the location of the robbery. Guzman followed defendant to an apartment building on High Street and radioed for back-up units. As defendant walked up the steps of the building, Guzman, with his gun drawn, ordered him to halt, turn around slowly and show his hands. Defendant complied and dropped a hat. Inside the hat were two wallets, a small personal computer and keys. Guzman seized these objects. Defendant was handcuffed and driven in a police car to the scene.

Julissa Chiquito, an employee of a law office above the ophthalmology practice, identified defendant as one of two men she saw standing near the elevators on the first floor next to the ophthalmologist's office moments before the robbery was committed. Guzman returned to the area where he first observed defendant. He found a long, serrated blade knife wrapped in a paper towel about 100 yards from the ophthalmologist's office.

The robbery victims were brought to police headquarters and were asked to look at a suspect, defendant, through a one-way mirror. They all later testified that defendant fit the physical appearance of the masked robber and was wearing similar clothing. Quintana made a positive identification based on the suspect's height and clothing. Dr. Vogel stated that the suspect closely resembled the robber in height and build and that his sneakers and pants matched those worn by the culprit. All of the victims identified the serrated blade knife recovered by Guzman as the one used by the perpetrator during the robbery.

Two days later, after receiving Miranda*fn2 warnings, defendant gave a formal written statement to Detective Michael La Greca. In the statement, defendant admitted to walking on the street with Sean Simpson. Simpson told him he was going to commit a robbery. Defendant told him that he would not participate in the robbery. Defendant walked across the street and toward Paulison Avenue. After a few minutes, Simpson ran up to him and handed him a baseball cap with two wallets in it. Simpson told him to hold on to them because the victims did not have defendant's description. Simpson ran off. Defendant walked to Simpson's apartment building on High Street. At this point, Guzman arrived and detained him.

Defendant did not testify or present any witnesses. No motion was filed to suppress the items seized or defendant's statement. Trial counsel filed a speedy trial motion. However, the judge would not hear it ...


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