On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-05-0513.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2007
Before Judges Lisa and Simonelli.
The jury found defendant guilty of second-degree robbery, N.J.S.A. 2C:15-1, as a lesser-included offense of first-degree armed robbery (count one); and third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count three).*fn1 Under count one, the jury answered affirmatively a special interrogatory inquiring whether defendant used or threatened the immediate use of a deadly weapon, thus establishing a predicate for imposition of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, in its form prior to amendment on June 29, 2001. The judge sentenced defendant on count one to six years imprisonment, subject to an 85% parole disqualifier and three years parole supervision under NERA. On count three, the judge imposed a concurrent term of five years imprisonment subject to a three-year parole disqualifier. The judge ordered restitution of $177 and imposed appropriate mandatory monetary assessments.
On appeal, defendant argues:
THE JURY INSTRUCTION ON DURESS DID NOT PROPERLY EXPLAIN THE BURDEN OF PROOF, AND THE INSTRUCTIONS, WHEN VIEWED AS A WHOLE, WERE, AT BEST, CONTRADICTORY ON THE STATE'S DUTY TO PROVE THE ABSENCE OF DURESS BEFORE A CONVICTION COULD BE RETURNED ON ANY COUNT. (Not Raised Below).
THE JUDGE NEVER TOLD THE JURY WHAT BURDEN OF PROOF APPLIES TO THE NERA-RELATED QUESTION ON THE VERDICT FORM FOR ROBBERY. (Not Raised Below).
THE CONVICTIONS SHOULD MERGE; ADDITIONALLY THE DEFENDANT'S SENTENCE FOR COUNT THREE IS EXCESSIVE AND ILLEGAL, AND $100.00 OF THE RESTITUTION AWARD IS IMPROPER.
The State concedes so much of defendant's argument in Point III as applies to merger, and we agree. Therefore, we direct entry of an amended judgment of conviction reflecting the merger of count three with count one. We agree with defendant's argument in Point II, and accordingly direct entry of an amended judgment of conviction deleting the NERA parole disqualifier and parole supervision requirement that were imposed as part of the sentence. We reject defendant's remaining arguments and in all other respects affirm his conviction and sentence.
On the night of February 18, 2001, Allen Perkins walked out of a liquor store in Paterson. A car occupied by three individuals pulled up. Two of them, defendant and Richard Francesci, got out. The driver, Carlos Cuba, remained in the car. According to Perkins, Francesci pointed at him what appeared to be a real handgun, but later turned out to be an imitation gun, and warned, "Poppy, don't move or I'll shoot you." At the same time, Perkins claimed that defendant put a knife to Perkins' throat, went through his pockets, and removed $47. Perkins claimed defendant cut his chin with the knife. Defendant and Francesci returned to the car, and the three men drove off.
Perkins immediately reported the incident to the police, and the three men were soon apprehended. Perkins identified defendant and Francesci as his assailants. The police recovered from the car two knives and the imitation firearm.
After receiving his Miranda*fn2 rights, defendant gave a statement to the police, which included the following passage that was read to the jury:
Carlos, and Rich, and myself were going to the liquor store. Carlos parked the car on Highland Street, and Rich and I went to the liquor store. . . . [W]e were walking to the liquor store and Rich saw a guy. He pulled out a gun. Then Rich gave me a knife. I held the knife to the guy's face, and he told me to check the guy. I told him I didn't want to be part of this. He grabbed the guy and told me to check him. I checked the guy, and then I ran back to the car. He left the scene, and we were going to take Rich to Park and East 18th. That is when the police stopped us.
The detective who took the statement conceded in his trial testimony that he did not write down in the statement, which was later signed by defendant, everything that defendant said but only wrote down portions when defendant "decided to tell me the truth of what occurred in the incident." Descriptions of the events which the detective deemed untruthful were not incorporated into the statement.
Defendant testified at trial. He said he came into Cuba's company between 9:30 and 9:45 p.m. on February 18, 2001. During their time together, Cuba spoke to Francesci. Defendant said he did not associate with Francesci because "[h]e's bad news. He has a bad reputation of doing stupid things." Francesci asked Cuba for a ride home, but Cuba refused, and Francesci walked away. Cuba and defendant entered Cuba's car and began to drive away. Francesci caught up to the vehicle at an intersection and again asked Cuba for a ride home. Cuba agreed and Francesci entered the car. After driving about two blocks, Francesci asked Cuba to make a quick stop because Francesci had to collect a debt from "some guy." At Francesci's direction, they parked in front of a liquor store.
As Francesci got out of the vehicle, defendant told Cuba he was going to stop in the liquor store to make a purchase. As defendant walked toward the liquor store, he observed Francesci telling Perkins to give him money and pointing at Perkins what appeared to defendant to be a real gun.
At that point, defendant said Francesci waived the gun at defendant and directed him to check Perkins' pockets. Defendant froze in shock, fearing that Francesci would shoot him if he did not comply. Francesci handed defendant a small object and told him to search Perkins. Defendant could not see that the object was a small knife until Francesci handed it to him. Defendant gave Perkins a brief pat down, but did not put his hands inside Perkins' pockets. He did not want to rob Perkins and thought a pat down would satisfy Francesci, who was "frantic" and "really ballistic" at the time.
Defendant told Francesci that Perkins did not have anything in his pockets. Francesci thought defendant was lying, but defendant said he wanted no part of the robbery and was leaving. Defendant went back to the car and informed Cuba of Francesci's actions. Before Cuba could leave the scene, Francesci reentered the car. They drove away and were stopped by the police a short time later.
Defendant contended he could not remember what the knife given him by Francesci looked like, but insisted it was not like the two knives found in the car. He also said he did not remember putting the knife to Perkins' face as he patted him down. Defendant claimed that the detective taking the statement invented the reference to defendant putting the knife to Perkins' face because he wanted defendant's statement to match the victim's account. Defendant also said the detective fabricated the statement about defendant taking $5 from Perkins. According to defendant, this deception ...