On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-06-1241.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges S.L. Reisner, Gilroy and Baxter.
Defendant Lakesha Jones appeals from her conviction for first degree armed robbery (liable for conduct of another), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1; criminal restraint, N.J.S.A. 2C:13-2b; possession of weapons for an unlawful purpose (conduct of another), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:13-1b; possession of weapons for an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of weapons, N.J.S.A. 2C:39-5b; and eluding, N.J.S.A. 2C:29-2b. She also appeals from the aggregate twenty year sentence imposed. We affirm.
The case arose from the January 24, 2003 armed robbery of a health spa in Fort Lee, New Jersey. Prior to the trial, the court ruled that the prosecutor could introduce evidence relating to armed robberies at two other health spas, for the purpose of establishing defendant's identity. We first summarize the Rule 104 hearing on the admissibility under N.J.R.E. 404(b) of this other crimes evidence, and then address the evidence presented at the trial.
During the pretrial hearing, the State sought to have a videotape from a January 13, 2003 robbery, of the Eastern Therapy Spa in Franklin Township, admitted into evidence under N.J.R.E. 404(b). The State argued that the videotape was relevant to the issue of identity, because the jackets seized by the police in this case were identical to those worn by the participants in the Eastern Therapy crime. The State contended that it needed to show this evidence, plus additional evidence concerning other robberies, in order to rebut the contentions of Jones and her co-defendant that they were not participants in the Fort Lee robbery but were innocent bystanders who were carjacked.
By showing that within the same general time frame, several other spas were robbed by persons wearing the same clothing and using the same modus operandi as defendant and her co-defendants, the State intended to show that the same people robbed the Fort Lee spa. Also, by connecting defendant to the clothing worn at those other robberies, the State intended to show that defendant was present at those robberies and, hence, that it was highly unlikely that she was at the scene of the Fort Lee robbery by accident or happenstance (e.g., carjacking).
Applying the four-part test of State v. Cofield, 127 N.J. 328, 338 (1992), the trial court ruled that the Eastern Therapy tape was admissible. First, the information on the tape was relevant to the material issue of identity. Second, the robberies were similar in that they both involved a spa, and were close in time as they occurred within one month of each other. Third, the evidence of the other crime was clear and convincing because it was clear from viewing the tape that another robbery was taking place. Finally, the judge concluded that the probative value of the videotape was not outweighed by the risk of undue prejudice.
The State also sought to enter into evidence the video of a January 16, 2003 robbery of the Ace Health Spa in East Brunswick, which had been found in a vehicle searched after the robbery in the current case. The court held that admitting this videotape, which showed the actual robbery and a victim being duct-taped, would be unduly prejudicial. However, the judge ruled that the State could redact the video to show only the jackets worn by the perpetrators. The judge also permitted the prosecution to introduce four still photographs culled from the Ace Therapy video, which the State contended were photographs of defendant.
The following evidence was presented at the trial. On January 24, 2003, an armed robbery occurred at the KOA Spa, located in Fort Lee, New Jersey. The spa was located on the third and fourth floors of the building, and customers entered by taking a glass enclosed elevator from the rear parking lot.
Kyong McCormick was working at the fourth floor reception desk after 9 p.m. on January 24, 2003. She testified that she observed on a video monitor two men and two women waiting outside the elevators on the ground floor. When the elevator arrived on the fourth floor, only one person stepped out. This was a black male, with curly hair, of medium height, and wearing a dark jacket; he was later identified as Darnell Bland. Bland gave McCormick the $60 entrance fee, and she gave him a key to a locker.
Bland entered the locker room and encountered Ray Leahy, a customer who had just completed a massage. Leahy testified that Bland looked around the locker room, and then asked for directions to the bathroom, which Leahy gave him. Leahy showered and returned to his locker to get dressed.
While Leahy was at his locker, Bland returned to the locker room with a towel attendant, pulled out what appeared to be a .45 caliber handgun, and ordered both Leahy and the towel attendant to the ground. Bland taped both men's wrists behind their backs. Bland went through Leahy's pockets and took out about $120 in cash, ripped a chain from around his neck, and took off his watch and a ring from his finger.
The towel attendant, who did not understand English well, started to get up. Bland pistol whipped him, causing him to fall to the floor. He taped the attendant's wrists and ankles, and told him not to get up or he would blow them away.
Leahy testified that while this was going on, he heard static and a woman's voice coming from a walkie-talkie in Bland's pocket. The woman's voice kept saying "where are you, where are you?" Bland took out the walkie-talkie and told her to "come on up." Bland left the locker room, telling Leahy and the towel attendant not to get up or he would kill them.
Bland returned to the reception area, complaining to McCormick, the reception desk attendant, that the key did not work. McCormick offered to help Bland open the locker, and walked toward the locker room with him. When they reached the door to the locker room, Bland pulled out a gun, pointed it at McCormick's head, and forced her inside. Once inside the locker room, he taped her arms behind her back with duct tape and put her inside a locker.
Shortly after, a black woman entered the locker room. She was wearing a hat and mask and carrying a gun. Leahy described her as being about five feet, three inches in height and 120 pounds. Leahy did not describe her jacket. Bland left the locker room with this woman.
As soon as they left, Leahy started removing the tape from around his wrists. McCormick began to scream from inside the locker, and Leahy let her out. He asked her if there was a fire alarm, and walked toward the front after she pointed in that direction. He saw the fire alarm, which had been taped with duct tape. He ripped off the tape and pulled the alarm box, which seemed to have already been pulled. Leahy saw about five people taped up in the reception area. He asked for a cell phone and called 9-1-1, and was told that police were already on the scene. Meanwhile, McCormick ran to the nightclub next door and asked them to call the police.
Eduardo Ponce de Leon, a bouncer at the nightclub, was at the door checking identification. He testified that McCormick ran up to the door, crying and saying they had been robbed. The head of security at the nightclub told Ponce de Leon to go to the back of the building to see if anyone was there. He ran to the back, and saw two men and a woman exit the glass elevator and run toward a red Ford Explorer, which was parked with a fourth person at the wheel. All four of the people he observed were black; he could not identify them because they were wearing masks. One of the women wore a puffy jacket. The spa was located near the Fort Lee police station, and the police were in front of the building by the time Ponce de Leon ran from the parking lot back to the front of the building.
KOA Spa customer Dante Joa testified that he exited a massage room and saw several customers tied up with duct tape. Two black males and one female, whom he described as short with black hair, were yelling at them not to move. Joa ran to the front and pulled the fire alarm, which was covered in duct tape. He could hear the alarm go off. He then ran down the stairs and called ...