On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-01-0037-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Fuentes and Grall.
The jury found defendant, Hamid Abdul-Shabazz, guilty of first degree armed robbery, N.J.S.A. 2C:15-1 (Count 1); third degree aggravated assault (as a lesser included offense of attempted murder), N.J.S.A. 2C:12-1(b)(7) (Count 2); fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (Count 3); and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (Count 4). The jury found defendant not guilty of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count 5). After receiving those verdicts, the judge submitted Count 6 to the same jury in the appropriate manner. Count 6 charged second degree certain persons not to have weapons, N.J.S.A. 2C:39-7. The jury found defendant guilty.
The judge merged the second, third and fourth counts into the first count, for which defendant received a prison term of eighteen years with the parole ineligibility term required by the No Early Release Act. On the sixth count defendant received a concurrent sentence of imprisonment for eight years with parole ineligibility for five years. The jury also found the co-defendant, Anthony Cantey, guilty of second degree robbery and hindering apprehension.
On May 3, 2003, at approximately 4:40 a.m., defendant was released from a Passaic jail, and around 5:00 a.m., defendant's girlfriend, Tia Plummer, and her mother picked defendant up at the jail and took him to their home. They had previously provided a cousin with $3,000 for payment of fines on defendant's behalf. Although $1,000 of the money was defendant's, the rest came from Tia and her mother. According to Tia and her mother, defendant slept in their house until around noon. As shall be seen, that alibi testimony was belied by the victim's testimony, to which we now turn.
On May 3, 2003, at about 7:30 a.m., the victim, Joseph Robinson left his house to go to Passaic County Community College, where he was enrolled as a student. While walking on Summer Street in Patterson, he saw two people nearby. He later identified them as defendant and Cantey. Cantey hit Robinson in the shoulder. Robinson turned and found defendant facing him. A struggle ensued during which the victim was slapped while his assailants tried to pull things from his pockets and take his backpack. Robinson tried to run, but defendant caught him and struck him in the face. Cantey then left; after which, defendant pointed a handgun at Robinson, threatened him, laughed, and then left.
A police officer arrived on the scene at about 7:45 a.m. and noticed that Robinson, who was upset and exited, had reddened skin near his left eye. Robinson described the event and provided descriptions of his assailants. At that time, he referred to defendant as Hispanic.
In mid-May, Robinson saw Cantey on the street and called the police. Shortly after the police arrived, Robinson saw Cantey riding a bike and pointed him out to the police, who effected an arrest.
In early June, Robinson saw defendant on the street, called the police and told them that defendant had just entered a particular building on Summer Street. The police entered the building, found defendant, and brought him outside, where Robinson made a positive identification of defendant as one of his two attackers. When questioned, defendant told the police that he could not have committed the crime because he was in jail when it was committed.
Defendant offers the following arguments for reversal of ...