On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment Nos. 04-05-0491, 04-05-0492.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 13, 2007
Before Judges C.S. Fisher and C.L. Miniman.
Defendant Ronald Williams appeals from his conviction of multiple offenses following a jury trial and from the sentences imposed thereon. We affirm the multiple convictions but remand for resentencing in accordance with State v. Pierce, 188 N.J. 155 (2006), which was decided after defendant was sentenced.
Defendant was charged in an indictment with first-degree armed robbery contrary to N.J.S.A. 2C:15-1, second-degree robbery contrary to N.J.S.A. 2C:15-1, third-degree aggravated assault contrary to N.J.S.A. 2C:12-1(b)(2), second-degree possession of a firearm for an unlawful purpose contrary to N.J.S.A. 2C:39-4(a), third-degree unlawful possession of a firearm contrary to N.J.S.A. 2C:39-5(b), third-degree receiving a stolen automobile contrary to N.J.S.A. 2C:20-7 and third-degree receiving a stolen firearm contrary to N.J.S.A. 2C:20-7. Defendant was also charged in a second indictment with second-degree certain persons not to have weapons contrary to N.J.S.A. 2C:39-7(b). On the first indictment the defendant was found guilty of first-degree armed robbery, third-degree aggravated assault, third-degree receiving a stolen gun and the two weapons possessions. He was found not guilty of possessing a stolen motor vehicle but guilty of joyriding, a lesser-included offense. On the second indictment, defendant submitted to a bench trial on the certain-persons offense and was found guilty.
At about 10:00 p.m. on September 3, 2003, two men walked onto the property of an Amoco gas station located on Route 22 in Union. They both stepped into the attendants' booth where Orhan Simsek, who is Turkish, was sitting during his shift as a gas station attendant. Once in the booth, the men demanded that Simsek give them money. Then one of the men, who Simsek later identified as defendant, hit Simsek on the head with a hard object. Simsek fell to the ground and subsequently gave the men approximately $300 that was in his pocket. After the men walked toward the car dealership next door, Simsek dialed "911."
Detective Brian Wilson, an off-duty black officer from the Hillside Police Department, was driving his own car in the vicinity of the gas station. He observed a black male, who he later identified as defendant, pull a ski mask over his face and reach under his shirt as though he was pulling out a weapon as he entered the attendant's booth, causing Wilson to believe that something suspicious was occurring. As a result, he pulled into the parking lot of a car dealership next door to the gas station and parked by the curb adjacent to the gas station to observe what was happening. He then saw the two men flee from the attendant's booth. The two men ran past Wilson's vehicle and as defendant was running, he took off the mask. One man was wearing a white tee shirt and a black jacket and the other was wearing a grey shirt and dark pants. Wilson got a good look at their faces and made eye contact with both. The men ran into the parking lot of the car dealership and got into the back seat of a Nissan Altima, which then drove away. Wilson called the Hillside Police Department to report the robbery and followed the Altima. While Wilson was in pursuit he described the car and read the license plate to the Hillside dispatcher. Wilson was joined in his pursuit of the Altima by police from both Union and Hillside.
The pursuit ended about two miles from the Amoco station when the Altima crashed on Pennsylvania Avenue, hitting two police vehicles and a parked car. Two of the four people in the Nissan, the driver and one of the men in the back seat, fled the vehicle but were apprehended by police officers at the scene. Defendant remained in the back seat of the disabled vehicle. He was pulled from the car and immediately arrested. Another person, a female, remained in the front seat. At the scene of the arrest, Wilson identified the man wearing the mask. He also identified the co-defendant at the scene of the arrest as the other man who ran from the attendant's booth. The money was recovered on the ground where the co-defendant was captured; a red, white and blue baseball cap worn by the co-defendant and the mask worn by defendant were found in the car; and a loaded 9mm Glock handgun was found in the street next to the Nissan.
Meanwhile, the Union police arrived at the gas station and Detective William Fuentes spoke with Simsek, who gave him a detailed description of his assailants. He said one was heavy-set, shorter and was wearing a red-and-white hat and a dark blue jacket.*fn1 Simsek described the other person as a taller and thinner black male who was not wearing a hat but was wearing a mask partially covering his mouth. Later, in the statement he gave to the police, Simsek described the second man as "tall, Black, 170 pounds, [and] about, 25 to 30 years old" with short curly hair.
Because Simsek had suffered a head wound in the incident, an ambulance arrived at the gas station to take him to the hospital. On the way, the police took a detour to the scene of the arrest and asked Simsek to identify the perpetrators. Simsek was not told that the people he was viewing were under arrest and none of the occupants of the Altima were handcuffed when they were presented to Simsek for identification. However, Simsek was in a position to see the occupants of the Altima being taken out of squad cars, having handcuffs removed, and being escorted toward him for identification. The police escorted the three male passengers of the Altima one at a time over to Simsek at the intersection of Long and Pennsylvania Avenues. Simsek, like the police officer who observed the crime and followed the vehicle, was certain in his identification of defendant as the gun-wielding assailant. Simsek did not recognize the driver of the Altima, Demetrice Love, and said that he was definitely not involved. Simsek believed that Rosebrough was the second robber who entered the attendants' booth and took the money but he was not entirely certain because he was not wearing the hat or jacket. The identification procedure took place about fifteen minutes after the robbery.
Defendant filed a motion to suppress the victim's out-of-court identification of him. The judge conducted a Wade*fn2 hearing on June 14, 2005, prior to jury selection. He denied defendant's motion to exclude the identification, finding Detective Fuentes' testimony at the Wade hearing to be credible. The judge found that the police did not suggest anything to the witness about the identifications. The judge concluded from case law that show-ups are not usually impermissibly suggestive because they are generally close in time to the crime, are "generally reliable" and "accurate" and "facilitate fast and effective police action." He concluded that allowing Simsek to see defendants being removed from police vehicles and having their handcuffs removed was not impermissibly suggestive. As a result, the judge determined that defendants had not met their burden of proof.
When the matter was reached for trial, the parties stipulated that the Altima had been stolen in Newark on August 21, 2003, and it remained stolen on September 3, 2003. They also stipulated that the 9mm Glock handgun had been stolen from Upper Darby, Pennsylvania on or about April 20, 2003, and the gun remained stolen on September 3, 2003. They also stipulated that the gun was an operable firearm on September 3, 2003. Finally, they stipulated that Police Officer Donald Cook dusted the fifteen $20 bills for fingerprints but did not find any.
Defendant testified at trial that, on the date of the incident, he was at a bus stop in front of his mother's and grandmother's house in Newark, when three people he knew drove up in an Altima and offered him a ride home to Hillside. He accepted and got into the back seat of the car. The driver indicated that he wanted to stop to buy cigarettes and pulled into a parking lot adjacent to a gas station. Defendant testified that the two other male passengers got out of the car, and he ...