On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-03-0431.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2007
Before Judges Coburn, Fuentes and Grall.
Defendant Marcus Cassady appeals from a final judgment of conviction and sentence. A jury found defendant guilty of two counts of second-degree robbery, N.J.S.A. 2C:15-1. The first victim was a teller in a bank, and the second victim was a salesman at a car dealership. The judge sentenced defendant to two consecutive ten-year terms of incarceration, eighty-five percent of both to be served without possibility of parole, and two three-year terms of parole supervision. See N.J.S.A. 2C:43-7.2. The judge also imposed a $200 VCCB assessment, a $150 SNSF assessment and a $30 LEOTEF penalty. On appeal, defendant challenges his conviction for robbery of the bank teller and contends that his consecutive, maximum sentences are excessive.
We reverse and remand his conviction for robbery of the bank teller and remand his sentence for robbery of the car salesman.
On February 2, 2004, defendant took a cab to the Cape Savings Bank in Atlantic City and asked the driver to wait. Inside defendant handed the teller a withdrawal slip in the amount of $5000. The teller asked defendant if he had an account, and he said "No." She told him she could not give him the money. Defendant responded, "Please hurry up. I know how to get it." The teller hesitated, defendant raised his voice and repeated his demand and warning: "Hurry up. I know how to get it." He then jumped over a bullet-proof glass barrier and onto the counter on the opposite side.
When the teller realized that defendant was going to come over the glass barrier, she dropped the keys to the cash drawer, ran to an adjacent room and locked the door. Although defendant did not touch or threaten her at any point, she was afraid and thought that defendant might kill her or do something else. Defendant took approximately $2500 and left the bank.
The cab driver, who had awaited defendant's return, took him to a car dealership. Defendant went in and took a car key from the desk of Eric Santana, a salesman who was using the telephone. By the time defendant found the car that matched the key among those in the lot, Santana was outside. He stepped between the door and the driver's seat in an effort to prevent defendant from closing the car door. Defendant put the car in reverse. A struggle ensued. Santana managed to remove the key and leave the car. Defendant grabbed him by the shirt and tie, but Santana was able to retreat to the showroom. Defendant followed and demanded the key. They struggled again when defendant tried to leave the showroom and Santana tried to block his exit. By the time the police arrived, Santana had defendant pinned against a car in the lot.
Santana had a mark on his neck, which defendant referred to as a "tatoo." He also had a red mark on his forehead.
Defendant had $2310 in cash. The cab driver and several bank tellers identified him. Defendant did not testify at trial.
Defense counsel requested a jury charge on lesser crimes included in robbery with respect to defendant's conduct in the bank. Considering defendant's demand for money and his climbing over the glass barrier from the perspective of the teller, the judge determined that there was no rational basis for a charge other than robbery.
Defendant raises the following issues on appeal:
I. THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT ACQUITTING DEFENDANT OF ROBBERY ON COUNT ONE, AND COMPOUNDED THE ERROR BY REFUSING TO INSTRUCT THE JURY ON THEFT FROM THE PERSON AS A LESSER-INCLUDED OFFENSE. (U.S. CONST. AMENDS. V, VI ...