On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-05-0686.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges Gilroy and Baxter.
Defendant Robert W. Stauffer appeals from his January 26, 2006 conviction on one count of second-degree robbery, N.J.S.A. 2C:15-1, and one count of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The judge sentenced defendant to a seven-year term of imprisonment on the second-degree robbery, subject to an eighty-five percent NERA parole ineligibility term. See N.J.S.A. 2C:43-7.2. The judge merged the third-degree unlawful possession of a weapon conviction with the robbery sentence and therefore imposed no sentence on that charge.*fn1
On appeal, defendant presents the following arguments for our consideration:
I. THE STATE FAILED TO PROVE THAT THE DEFENDANT COMMITTED THE OFFENSE OF ROBBERY AND POSSESSION OF A WEAPON FOR UNLAWFUL PURPOSES BEYOND A REASONABLE DOUBT, THUS, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below)
II. THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE AND THE TRIAL COURT FAILED TO CONSIDER MITIGATING FACTORS ON THE DEFENDANT'S BEHALF.
John Austin was the manager of a Sunoco gas station on the New Jersey Turnpike. He testified that about three weeks before the robbery, on January 6, 2005, defendant came to the gas station and asked him for a job application. Although Austin told defendant to wait in the garage, defendant followed him into the manager's office. By doing so, defendant was able to see where the safe was located.
On February 1, 2005, between 1:00 and 1:30 a.m., Brian Winch was working there as a gas station attendant when a man, later identified as defendant, accosted him. Winch was unable to see his assailant's face because the man was wearing a ski mask, but Winch was able to see the assailant pull out an object that had a "black handle and a silver part to it." When the assailant pushed the object against Winch, he said "I'm robbing you, mother f---er." After sticking the weapon into Winch's abdomen, the man pushed Winch into the back office where the safe was located and demanded that Winch open the safe and remove the money. As soon as Winch handed the man the cash box, he took it and fled. Once the man was gone, Winch immediately called 9-1-1 and reported the robbery.
State Trooper Mark Friedenberger responded to the 9-1-1 call. Friedenberger met with Winch and fellow employees Marvin Lozada and Charlie Burns. Although each witness was interviewed separately, all described the robber as being six feet tall with green eyes, wearing a black ski mask, grey gloves, a black hooded sweatshirt and a jacket. Winch also said the robber carried a green backpack. Based on those descriptions, John Sandor, a New Jersey Turnpike Authority employee who was in the service area when the police arrived, set out in his own patrol car to look for a male in the area.
About a mile from the Sunoco station, Sandor saw a man who was wearing a black jacket, white hooded sweatshirt, khaki pants and holding a backpack, walk into a convenience store parking lot. The man entered the convenience store and spoke to the manager Frank Murgitroid, who knew defendant because defendant frequented the store. Murgitroid testified that he had seen defendant enter his store three hours earlier at 11:00 p.m., and at that time defendant was wearing a white hooded sweatshirt and was carrying his green backpack. When Murgitroid noticed defendant in the ...