On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Docket No. 04-07-2800.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Sabatino.
Following a jury trial, defendant, Andre L. Gonzalez, was convicted of first-degree robbery, N.J.S.A. 2C:15-1a (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); and first-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, 2C:15-1 (count four). Defendant moved for a new trial. The judge denied the motion, merged counts two, three, and four into count one and imposed a twelve-year term with a mandatory NERA*fn1 parole disqualifier.
These are the proofs presented by the State. On May 14, 2004, at approximately 10:55 p.m., the victim, a delivery man for N & A Pizzeria, attempted to make a delivery to apartment L-3 of the Fountainview Apartment Complex in Blackwood. The victim knocked on the door. Although he heard noises on the other side, no one came to answer it right away. Once the door was opened, two men, each with a kitchen knife, tried to pull the victim into the apartment. The individuals were later identified as defendant and co-defendant Nathaniel Robinson. Each of them had a kind of "black nylon stretchy material" covering their head and part of their faces. Despite the covering, the victim was able to get a "very good look at both of their eyes." During the scuffle, the taller individual's mask was "hanging down loosely . . . and flapping around," which allowed the victim to get a good look at his jaw line and profile.
The taller man announced that he had a knife and held it to the victim's stomach, demanding money, while the shorter man came up behind him and put a knife to his throat, asking him repeatedly if he wanted to "get murdered." The victim grabbed the $400 that he had in his pocket and dropped it on the floor. The assailants checked the victim's pockets for more money, threw him into the interior of the apartment, which was abandoned, and ordered him to wait there while they fled the scene. The victim waited about ten or fifteen seconds and went to his car where he used his cellphone to call the police.
Gloucester Township Police Officer Brian Farrell was dispatched to the scene. He spoke to the victim, who described the robbery in detail. The victim went to the police station and provided a taped statement of the incident.
Gloucester Township Police Detective Sergeant Eric Quintavalle was informed that a witness to the Fountainview robbery was waiting to give a statement. Seventeen-year-old Amanda Robinson was at the station with her parents, who had given permission for her to be interviewed. The Robinsons live in the Fountainview Complex. Amanda gave a taped statement to Detective Quintavalle, incriminating her older brother, Nathaniel.
Nathaniel voluntarily came to the police station with his father. Nathaniel gave a taped statement, admitting to robbing the victim. He told the police that he acted with defendant and that it was defendant's idea. Nathaniel's version of the incident was almost identical to the victim's version. He stated that defendant called the order into the pizzeria and gave the abandoned apartment's address. When the delivery man knocked on the door, defendant put a knife to the victim's stomach and demanded money. Nathaniel admitted getting behind the victim, but said he did not have a knife. Once the delivery man gave them the money, they both took off running.
Based on the information given by Amanda, Detective Quintavalle created two photographic arrays, each containing pictures of eight similar-looking individuals, including defendant and Robinson. The victim was called back to the police station in the early morning hours of May 15, 2004. He was shown the photographic arrays. He identified defendant as one of his assailants.
Detective Quintavalle testified on direct that in compiling the photographic array, he pulled up the suspects' pictures from the in-house computer at the station. Defense counsel objected to the comments and moved for a mistrial. The judge ruled that a curative instruction informing the jury that photos are available in the system for a variety of reasons, including motor vehicle matters and municipal matters, would suffice.
On re-direct, Detective Quintavalle stated that he typed in the name of the "suspect" to obtain a photograph for the array. Defense counsel again objected. The judge ruled that the prior limiting instruction "sufficiently accounts for the existence of names." The judge also ruled that continuing the line of questioning might lead to potentially problematic answers and therefore requested the prosecutor move on to a different area.
Amanda testified that her brother and defendant were friends and "were together all the time." Nathaniel admitted taking part in the robbery to her. On the night of May 14, 2004, Amanda, Nathaniel, and defendant were all in the Robinson's apartment. Amanda saw defendant take the pizzeria menu and left with Nathaniel. From the balcony of her apartment, Amanda saw defendant on his cell phone, still holding the menu. Her brother was by defendant's side. After defendant got off the phone, she saw him and her brother walk away.
Prior to trial, Nathaniel pled guilty to the robbery. He was serving a sentence for this charge when he testified. Nathaniel's trial testimony was drastically different from the voluntary statement he gave the police. He testified that he alone robbed the victim. Nathaniel said that he knew defendant and was friendly with him, but that the defendant was not involved in the robbery.
Defendant did not testify. The sole defense witness was his mother, Carmen Gonzalez Lewison. Lewison testified that shortly after the robbery, she presented a picture of her son to the victim and asked him whether that was the person who robbed him. According to Lewison, the victim took the picture, looked at it, and told her that it was not the person who robbed him. To the contrary, the victim testified that he recalled Lewison ...