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State v. Behlin

February 5, 2008


On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-06-0700.

Per curiam.


Submitted January 9, 2008

Before Judges Wefing and Lyons.

Defendant Herbert Behlin appeals from an order entered June 16, 2006, denying defendant's petition for post-conviction relief (PCR). We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Based on the testimony presented by the State's witnesses at trial, at approximately 10:45 p.m. on February 15, 2001, three individuals were working at a gas station in Elizabeth. One was a cashier, while the other two were pumping gas. At that time, all three were robbed by defendant and his co-defendant. The individual, who was working as a cashier in the convenience store part of the gas station, was approached by defendant and his co-defendant. As the cashier was ringing up various items for purchase by the two individuals, defendant pulled out a gun and ordered the cashier to open up the register. When he did so, the perpetrators took out the money. Soon thereafter, one of the gas station attendants entered the store and was ordered to stand with the cashier. The other gas attendant also entered the store to process a credit card purchase by a customer. At that time, he observed the two perpetrators robbing his co-employees. That attendant saw that defendant had a gun and was taking money out of the register. Co-defendant then asked him for his money and he gave it to him. The two perpetrators were unable to open the safe in the convenience store. They punched one of the attendants and hit him with a telephone, and they also punched another one of the employees.

While all this was happening, a priest who had stopped for gas, observed numerous people inside the convenience store. He wondered why no one was coming out to help him. The priest then saw someone holding one of the attendants by the shoulder and pointing to different places. He eventually realized that several of the individuals inside were attendants and that one of the two perpetrators had a gun. Consequently, the priest drove away from the gas station, called 9-1-1, and reported that he believed there was a robbery in progress.

Within minutes, four police officers arrived at the scene. They entered the store and apprehended defendant, who had a gun in his hand, and his co-defendant. Defendant and co-defendant in this matter were later identified by the priest who made the telephone call. Lastly, a surveillance videotape taken from inside the store was secured by the police and, on review, it depicted what had occurred.

In June 2001, defendant and his co-defendant, Steven Williamson (Williamson), were indicted and charged with fourth-degree aggravated assault by pointing a firearm, contrary to N.J.S.A. 2C:12-1(b)(4) (count one); third-degree unlawful possession of a firearm, contrary to N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count three); first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count four); and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a) (count six). Co-defendant Williamson was also charged with third-degree resisting arrest in count five of the indictment.

Defendant's trial began before a jury. The State, during its case, presented the proofs outlined above. Defendant advanced an intoxication defense, claiming that he was in an intoxicated state on the day in question, arising out of his long-standing drug abuse involving heroin. One of defendant's witnesses, Shakee Akbar (Akbar), testified on defendant's behalf. He testified that he and defendant consumed heroin on the day in question, and that his impression was that defendant was high. Prior to the witness's testimony, both the defense, as well as the prosecutor and one of his investigators, interviewed Akbar. During the cross-examination of Akbar by the State, the prosecutor asked:

Prosecutor: All right. After you spoke with [defense counsel and his investigator], you also spoke with myself and an investigator from my office. Correct?

Akbar: Yes.

Prosecutor: And at that time, didn't you, initially, say that [defendant] went there to rob the gas station, but then later recant that ...

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