On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 04-08-1660.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Sabatino and Alvarez.
Defendant, James Dalskov, was convicted of second-degree burglary, N.J.S.A. 2C:18-2 (Count One), second-degree attempted robbery, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (Count Two), second-degree attempted kidnapping, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:13-1b (Count Three), second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count Five), and second-degree conspiracy to commit kidnapping, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:13-1 (Count Six). He was acquitted of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four).
The trial judge merged the fifth count conviction with the second count conviction and the sixth count conviction with the third count conviction and imposed concurrent ten-year terms on the first, second, and third count convictions together with a No Early Release Act, N.J.S.A. 2C:43-7.2, parole disqualifier. Defendant appeals and we affirm.
On March 5, 2004, the Special Investigation Unit of the Bergen County Prosecutor's Office received "information that identified one John Piccone as a possible victim" of a crime. The Special Investigation Unit and the Palisades Park Police Department set up a joint surveillance of Piccone's home located at 261 Glen Avenue in Palisades Park. Officers located Piccone, then seventy-three years old, at his solid waste business, SJG Waste Management in North Bergen, and accompanied him to his home, where he lived alone.
At approximately 7:00 p.m., Lieutenant Erik Baum and Sergeant Tim Condon of the Prosecutor's Office, Detective Sergeant Anthony Muccio of the Palisades Park Police Department, Detective Sam Giovia of the County Sheriff's Department, and Officer Fred Pulice of the Englewood Police Department began observing Piccone's house from three cars in various positions on the streets around Piccone's Glen Avenue home.
Prosecutor's detectives, Sergeant Robert Anzolatti, James McMorrow, and Christopher Barzelatto, and Palisades Park Police Department Lieutenant Anthony Servis took up surveillance positions inside Piccone's home. Piccone was instructed, if anyone knocked on his front door, to ask who it was, say he would be there in a minute, and then to secrete himself in the kitchen.
At approximately 8:00 p.m., Baum, through a heavy fog, observed a red Ford Expedition slowly circle the Glen Avenue block two times, park, with the lights out, directly across from Piccone's home where it remained for twenty minutes before leaving the area. Baum followed the Expedition as it left, recorded the license plate number, and then returned to his surveillance post. The Expedition was registered to Mazzkov Trucking, Inc., in Secaucus, New Jersey, a company owned by defendant's wife, Donna Dalskov. The Division of Motor Vehicles listed defendant's address, 76 LaSalle Avenue, Hasbrouck Heights, New Jersey, as an alternate address for the vehicle.
At approximately 10:00 p.m., a four-door Pontiac Bonneville with three occupants turned onto Glen Avenue and circled the block several times at a low rate of speed. Baum alerted the surveillance teams via radio of the Bonneville's presence, however, shortly thereafter the exterior surveillance teams lost visual contact with the vehicle.
Inside Piccone's home, Servis, McMorrow, Anzolatti and Barzelatto took up positions near the front door. The front screen door was opened and a male voice said "PSE&G." Piccone responded, as instructed, "Just one minute, I'll be right there," and then retreated to the kitchen. The interior surveillance team radioed the exterior teams to inform them the suspects were at the front door. As Anzolatti unlocked the deadbolt, the doorknob was turned from the outside, the door forcibly opened inward, and two men began pushing their way into the house. Barzelatto and Anzolatti yelled, "police, get on the ground," pushed the first intruder back outside, while the second intruder turned and began to run down the street. After Barzelatto tackled the first intruder on the front porch, a violent struggle ensued and eventually the intruder was subdued, handcuffed, arrested, and identified as Robert Schneider.
Meanwhile, outside, Baum observed a white male in dark clothing running from the residence and being pursued by Anzolatti. Baum took up pursuit and, in front of 269 Glen Avenue, he and Anzolatti tackled and arrested the suspect, later identified as Richard Greenwald.*fn1
A roll of duct tape, which Greenwald discarded as he attempted to evade apprehension, was retrieved and a knife, cell phone, leather gloves, and a police scanner set to monitor the Palisades Park Police radio channel, were recovered on Greenwald's person. Flexi-cuffs, a black hat, and a black ski mask were found on the front porch of Piccone's home. Greenwald and Schneider were transported to the Bergen County Prosecutor's Office in Paramus for questioning.
Following Greenwald's and Schneider's arrests, Baum located the Pontiac Bonneville near 273 Glen Avenue and began unsuccessfully conducting a street-by-street search of the area in an attempt to locate the Bonneville's third occupant. The Bonneville was registered to a Lynn Distel, Greenwald's girlfriend, in Elmwood Park. Distel was located and consented to a search of the Bonneville. Two flexi-cuffs and a Quality Lube receipt in the name of "Richard Green" were recovered from the Bonneville.
Defendant's wife, who is also Greenwald's stepsister, was located and brought to the Prosecutor's Office sometime prior to defendant's apprehension.*fn2 Anzolatti asked Donna if she knew where defendant was, however, she did not know his location.
Around 11:50 p.m., Barzelatto and Anzolatti began questioning Greenwald at the Prosecutor's Office. At approximately 1:15 a.m., during the interview, Greenwald's cell phone rang; Anzolatti instructed Greenwald to answer the call and to relay certain information to the caller. Greenwald identified the caller as "Jimmy," who Anzolatti understood to be defendant. Greenwald answered, followed Anzolatti's instructions on what to say to the caller, and handed the phone to Anzolatti. Anzolatti said "Hello, Mr. Dalskov," and the caller responded "hello." Anzolatti told defendant he should surrender and gave him the option of coming to the Prosecutor's Office himself, or having a squad car pick him up at his location. Defendant agreed to surrender and requested that a squad car pick him up at his location, a Sunoco station off Route 46 in Palisades Park.
A marked squad car was dispatched. When defendant saw the squad car, he began waving his arms to flag the officer down, and said to the officer, "I'm the guy you're looking for." Defendant was arrested at the gas station and brought to the Prosecutor's office.
After being advised of, and waiving his Miranda*fn3 rights, defendant was questioned by McMorrow and Muccio. Defendant told McMorrow that he knew Piccone because he had driven a truck for him in the past and that he believed Piccone had "millions of dollars." Defendant said that he, Greenwald, and Schneider met on March 5 at Schneider's house to plan the home invasion of Piccone's residence. Defendant indicated that he and Greenwald first discussed robbing Piccone approximately two weeks prior to March 5. Defendant said that it was Greenwald's idea to bring Schneider into the fold to execute the robbery.
Defendant told McMorrow that he supplied the flexi-cuffs and duct tape for the robbery. He explained to McMorrow that Schneider was assigned to enter Piccone's home, bind Piccone and cover his eyes using duct tape, while defendant and Greenwald raided a safe in Piccone's home. Defendant stated that he picked up Greenwald in a red Ford Expedition. They then met up with Schneider and drove by Piccone's residence to check the block and "see if it was kosher." While they sat in front of Piccone's house, defendant told Greenwald they should not use the Expedition during the robbery, so they decided to use Greenwald's girlfriend's car. They then switched cars and returned to Piccone's home. He explained that they parked the car and, as Greenwald and Schneider approached the front door, he stood behind a tree nearby. After observing what happened and hearing someone yelling "police," he fled the area on foot southward towards Route 46.*fn4
According to McMorrow, defendant's wife was not discussed during the interview of defendant. McMorrow testified that defendant did not see his wife at the ...