On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-03-0778.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2008
Before Judges Parker and Lyons.
Tried to a jury, defendant Julio Flores was convicted of robbery, burglary, unlawful possession of a weapon, and possession of a weapon for unlawful purpose. After reviewing the record in light of the contentions advanced on appeal, we have concluded that the trial court did not commit reversible error at trial or during sentencing and, therefore, we affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On November 11, 2005, the victim of the robbery, a widow, was preparing to leave her apartment to go to work at one of her two jobs. As she opened the door to leave for work, a man pushed her back into the apartment and demanded everything that she had of value. As she began to scream, the assailant placed a knife to the victim and told her not to scream. Although the man wore a hood, the victim immediately recognized his voice.
The victim begged him not to do anything to her because of her grandchildren, but to take whatever he wanted. He held a knife to the victim's back and had his arm around her throat as they walked into the bedroom. The man took $1000 in cash from the bureau top and the victim's deceased husband's rings and her necklaces from a wooden jewelry box. The assailant led the victim back into the living room, opened and closed the apartment door to make sure that nobody was there, opened the door again, and ran from the apartment. Before he ran, he pushed the victim back and told her not to report the crime.
While the robbery was in progress, the victim's neighbor heard a commotion and argument coming from the victim's apartment. He became concerned and knocked on the her door, asking, "what's happening? Is everything all right?" When nobody answered, he went back into his apartment and left his door cracked open. The neighbor then saw somebody, whose face was covered by a "hoodie," open the victim's door and run past his door. Subsequently, the neighbor returned to the victim's apartment, where he found the victim crying. He then asked someone to call the police. When the police arrived, the victim went to the police station where she gave a statement. The victim knew defendant as "Tony," recognized him by his voice, and identified him by his photo. On November 21, 2005, defendant was arrested and charged.
On March 14, 2006, defendant was indicted on: first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count two); fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count three); and third-degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4(d) (count four).
At trial, the victim testified that she never saw her assailant's face, but that she immediately recognized his voice.
She testified that she had known defendant for four years, saw him daily, and conversed with him on a regular basis. In court, the victim again identified defendant as the man she knew as Tony. She testified that he slept in the stairwell of her apartment complex. In addition, he would ask the victim for the key to the bathroom downstairs and for food, which she would give him.
On September 20, 2006, the jury found defendant guilty on all counts. On December 1, 2006, defendant was sentenced. The trial court, pursuant to N.J.S.A. 2C:44-1, found aggravating factors (1), (2), (3), (6), and (9), and no mitigating factors. It sentenced defendant to fifteen years on the robbery count, with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition, defendant was sentenced to seven years on the burglary count to run concurrent to the robbery sentence, also subject to NERA, and nine months on the unlawful-possession-of-a-weapon count to also run concurrent to the robbery sentence. The possession-of-weapon-for-an-unlawful-purpose count was merged with the robbery count. The court also imposed appropriate fines and penalties.
On February 7, 2007, defendant filed a notice of appeal. Defendant raises the ...