On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 05-03-0076.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2008
Before Judges Collester, C.S. Fisher and C.L. Miniman.
Defendant was charged with having committed the following offenses regarding the allegation that he robbed a liquor store in Knowlton Township and assaulted the store's clerk, Rajeshbai Patel, on November 22, 2004: first-degree robbery, N.J.S.A. 2C:15-1(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2).
Defendant sought to represent himself at trial. Following a hearing, the trial judge found that defendant knowingly and voluntarily waived his right to counsel and that he could proceed pro se; the judge, however, also appointed standby counsel.
The trial occurred over the course of six days. Evidence that the jury was entitled to credit revealed that at approximately 8:00 a.m. on November 22, 2004, Patel was working alone at his cousin's liquor store in Knowlton when defendant entered and walked to a beer cooler. No one else was then in the store. Although Patel did not then know defendant's name, he recognized defendant from his appearance in the store four or five times within the prior two weeks, and on another occasion approximately two months earlier.
Defendant removed a malt liquor from the cooler and placed it on the counter in front of Patel. He then walked to the deli counter and asked Patel to get him a quarter pound of potato salad. Patel advised defendant that the total cost was about four dollars. Defendant said he did not have enough money; Patel responded that defendant could pay what he had and bring the balance the next time. When Patel returned from the deli counter with the potato salad, defendant reached out and cut Patel on the left side of his face with a box cutter. Defendant then placed the box cutter against Patel's neck and made a "slight cut" there as well.
While continuing to hold the box cutter against Patel's neck, defendant pulled him toward the cash register and demanded its contents. Patel complied and defendant next demanded all the money in the nearby lottery-game register. Again Patel followed defendant's instruction. Patel later testified that he was "scared" and felt "the pain there on my neck" where defendant held the box cutter. He also testified that $820 was stolen from the liquor store.
After obtaining the cash from both registers, defendant released Patel and told him not to try to follow him as he "rushed through the door." Patel did not attempt to follow, but instead tried to stop the flow of blood "oozing" from his face and neck.
Soon thereafter, a customer approached the store and saw inside that Patel was bleeding. The customer approached a state trooper who was conducting radar speed surveillance on the highway about 200 to 300 yards away. The trooper notified his dispatcher and went to the store, where he found Patel holding a towel over cuts on his face and neck. Later, Patel gave a description of his assailant, telling the police that the man had a scar or some abnormality involving his nose. Following this, Patel was transported to a hospital, where the cut on his face was closed with sixteen stitches and the cut on his neck was closed with four stitches. He was released from the hospital the same day.
Detective Howard Brown of the State Police led the ensuing investigation. He contacted the Pennsylvania State Police (PSP) concerning a report that a suspect may have crossed a nearby bridge into Pennsylvania. This lead proved insubstantial, but the PSP advised Detective Brown that similar crimes had been committed in Pennsylvania during the previous three days by a man with a "cut scar" on his face, who was armed with a box cutter and driving a Volvo. The PSP sent Detective Brown a composite depiction of the suspect in the Pennsylvania crimes, which Brown later showed to Patel. Patel noticed similarities but indicated that the scar on his assailant's nose and face was different.
The next day, November 23, 2004, the PSP received an informant's tip which indicated that defendant was the person who committed the Pennsylvania robberies. The PSP prepared a six-man photographic array that included defendant's photograph. The State Police also learned that at least one of the Pennsylvania crime victims positively identified defendant as the culprit. In addition, the PSP gathered information that indicated defendant had used his father's Volvo during the robberies. This information was relayed to Detective Brown.
Later that same day, Detective Brown had another trooper show the six-man photographic array to Patel, who immediately selected defendant's photograph as depicting the robber of the liquor store. At trial, Patel positively identified defendant as the man who assaulted him and robbed the liquor store.
With Patel's positive identification, the police began searching for defendant and the Volvo he was believed to be using. The State Police learned that defendant was employed by a tree-trimming company in the Rockaway area and may have been staying in the Mountainside Inn in Rockaway. They determined at the Mountainside Inn that defendant had a room there but had not been present for a week.
On November 24, 2004, a police officer in Washington Township observed defendant "fall off a lumber truck" and then "jump on another moving vehicle." When defendant failed to comply with the officer's directions, he was arrested for disorderly conduct.
The arresting officer testified that defendant smelled of alcohol and was "hard to understand . . . because he was rambling." The Washington Township police subsequently learned that there were "active warrants" outstanding for defendant's arrest. That same day, the Washington Township police contacted Detective Brown to advise they had arrested defendant. Brown was also advised that defendant had been in the vicinity of the Broadway Motel on Route 57 when he boarded the lumber truck from which he fell prior to his arrest.
Armed with this information, Detective Brown and other investigators went to the Broadway Motel where they found a Volvo, which matched the description and had the same license plate number as the Volvo that defendant was reported to be operating in the area. Detective Brown then checked with the motel staff and learned that a man fitting defendant's physical description had rented a room there in the name of defendant's father. Brown then was led by a motel staff member to this rented room, which they found "in disarray [as if] a possible fight had gone on in the room." The officers did a quick sweep to make sure no injured person was present in the room.
Detective Brown directed another officer to guard the room so that it would not be disturbed pending issuance of a search warrant. The officers also looked through the windows of the Volvo, and observed that it was filled with clothes. Brown ordered that the vehicle be impounded and taken to a State Police compound where it could be safeguarded pending the issuance of a search warrant. He took this action because he "didn't know if anybody else had the key to the vehicle" and was concerned that someone could come and drive it away or tamper with or remove its contents.
A superior court judge later issued a search warrant for the Volvo. The ensuing search uncovered a utility knife with red stains on its blade and handle that tested positive for human blood. At trial, the State presented expert testimony drawn from DNA analysis, which revealed that ...