On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-04-0383.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2007
Before Judges Parker and Lyons.
Defendant Jacob Bennett (Bennett) appeals from his conviction on robbery, aggravated assault, possession of a weapon, and conspiracy charges and the sentence imposed. We affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On June 23, 2003, co-defendant Johnny Howell (Howell), then seventeen years old, and Bennett, then twenty-four years old, needed money. The two men came up with an idea to rob a store. They planned to throw bleach, carried in a Snapple bottle, in the face of a store-owner, and then steal some money.
Howell filled a bottle with bleach at Bennett's house and put it into his pocket. The co-defendants then took a bus from Westfield to Rahway and "checked out" various stores to rob. After going into two or three stores, Bennett chose one particular store to rob, Rosen's Confectionary (Rosen's). According to Howell, Bennett chose Rosen's because it was the "easiest looking store to rob."
According to the plan, it was Howell's job to throw the bleach into the store owner's face and Bennett's job was to get the money. When Howell entered Rosen's, Ashok Patel (Patel), the store owner, was working. Howell threw the bleach in Patel's face. Contrary to the plan, Patel, who was wearing glasses, picked up the phone and began to dial. Their plan failing, the two then ran out of the store and took the bus back to Westfield.
On July 14, 2003, Bennett, who had his jaw conspicuously wired at the time, called Howell and told him to get dressed and to bring a baseball bat. Howell hid a green, aluminum baseball bat down his pants leg and met Bennett at the bus stop. Once Howell arrived, Bennett again discussed the idea of robbing Rosen's. The co-defendants rode a bus to Rahway again.
Upon reaching Rahway, Bennett and Howell first went to a house belonging to relatives of Bennett's, the Cherrys. Chintan Patel, the son of Ashok Patel and friend of the Cherrys, was there and spoke to the two. Only Bennett, who was identified by his build and the wired jaw, spoke back to the younger Patel.
Bennett and Howell then proceeded to a nearby church where they sat on the stairs. Auston Gabriel (Gabriel), then about thirteen years old, walked out of Rosen's, which was two buildings away from the church, and rode his bike past the church. He saw two black men, one with "some type of metal in his mouth," sitting on the stairs of the church. The one with "metal in his mouth" asked Gabriel who was in the store, to which Gabriel responded that an "older Indian guy" was there.
Bennett and Howell devised a plan that Howell, using the baseball bat, would attack the store owner and whomever else was in the store and Bennett would get the money. According to Howell, this was Bennett's idea. The two men then proceeded to Rosen's.
When Howell first walked into the store, he did not see any customers; he only saw Patel. Howell then started to beat Patel with the bat "numerous times" until Howell believed Patel to be unconscious. Next, Howell saw a customer, Harry G. Brown (Brown), a florist from Kendall Park, and began to beat him with the bat. As Howell was beating Brown with the bat, Bennett got the money from the register. At some point, Bennett locked the front door.
Brown believed that somebody knocked on the door and left, presumably to call the police. At this time, Howell stopped hitting with the bat. Billy Lambracopoulos (Lambracopoulos), in fact, testified that he did attempt to open the door to Rosen's, but could not open the door. At first, he thought that the store was closed, but then he saw an "incident" inside involving Patel and two black males. Lambracopoulos then ran next door to an antiques store and told the shopkeeper to call 911.
Bennett and Howell planned on escaping through the back door. Instead of a back door, however, they found a bathroom, leaving no egress except through the front door. Brown testified that Bennett unlocked and opened the door and the men ran off in the direction of the church. Lambracopoulos testified that he saw the two black males wearing jeans and white T-shirts walking away in the direction of the church at a fast pace while "putting stuff down their pockets."
Ralph Burla (Burla), a taxi driver, picked Bennett up a block away from Rosen's. Burla testified that Bennett had "something in his mouth like some kind of piece, like a wired piece" and that Bennett was wearing a white T-shirt and jeans. First, Bennett requested to be dropped off in Linden. When he arrived there, however, he changed his mind. Instead, Bennett was dropped off at a Pathmark on South Avenue in Cranford.
Later in the day, Bennett met up with Thomas Lee (Lee) in Westfield. Lee testified that Bennett was wearing jeans and a white T-shirt and walked with a limp. First, Bennett told Lee that "[i]f anyone asks you about what I'm going to tell you . . ., tell them I was with you, cutting your lawn at your house." Bennett then told Lee that he was in Rahway by the house of a relative named Cherry and that Bennett and another man robbed a store. Bennett then told Lee that the other man beat the owner and a customer "with a hammer" and that they "didn't look good" and were, perhaps, dead.
Additionally, Bennett said that there was a previous "altercation" with the same store owner in which bleach was thrown. Bennett also told Lee that a relative of the store owner questioned Bennett about the bleach incident on the day of the July 14, 2003, robbery. Lee subsequently contacted the police because he "wanted to clear [him]self from anything further happening."
Meanwhile, Howell did not have money for bus fare, so he asked people for money until he had enough to take the bus home. On the bus, he gave the baseball bat to a boy. Later, Bennett met up with Howell and gave him $200 from the proceeds of the robbery. This was supposed to be one-half of the money taken from the store, which was about $5000.
As a result of the beating, Patel suffered a very large gash in the back and side of his head. Brown received compound fractures in his arm and an injury to his head requiring nine staples. Even after nearly a year of physical therapy and rehabilitation, he still suffers from decreased strength and dexterity.
Following the robbery, Gabriel returned to Rosen's when he discovered that it had been robbed. He then went to the police station and gave a statement. Additionally, he identified two pictures, one of which was Bennett, that he thought could have been the man sitting on the stairs, although he was not completely sure.
Patel also gave the police a statement. He stated that two black males entered and hit him with a bat.*fn1 The police were able to put together an initial description of the assailants, two black males in jeans and white T-shirts, from eyewitnesses and broadcasted it to the other officers who were canvassing the area.
Based on the unique description of Bennett gathered from the various witnesses, the police were able to match the description to a name. In addition to the wired jaw, it was reported that Bennett walked with a limp due to a "bad bunion on his left foot." On August 26, 2003, Bennett was arrested for the robbery at Rosen's. The police then matched known associates of Bennett's to the descriptions of the second robber and were able to identify Howell.
On December 11, 2003, Howell's eighteenth birthday, the Rahway police came to Howell's house. Howell voluntarily went to the station with the police. He was read his rights and waived them. After speaking to his aunt for ten to fifteen minutes on the telephone, ...