On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-04-0827.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2007
Before Judges Axelrad and Payne.
Appellant filed a pro se supplemental brief.
Defendant, Paul Jennings, appeals from his conviction for first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2. He was sentenced to ten years in custody, subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant raises the following arguments through counsel:
THE TRIAL COURT ERRED WHEN IT FAILED TO DECLARE A MISTRIAL AFTER THE JURY INFORMED THE COURT ON TWO OCCASIONS THAT IT WAS DEADLOCKED.
THE PROSECUTOR COMMITTED SEVERAL ACTS OF MISCONDUCT WHEN HE IMPROPERLY BOLSTERED THE CREDIBILITY OF STATE WITNESSES, RELIED ON THEATRICS DURING THE CROSS-EXAMINATION OF JENNINGS, AND EQUATED JUSTICE WITH A GUILTY VERDICT. (Partially Raised Below.)
A. The Prosecutor Improperly Bolstered the Testimony of the Two State Witnesses.
B. The Prosecutor Improperly Relied on Theatrics Throughout Cross-Examination of Jennings.
C. The Prosecutor Improperly Equated Justice with a Guilty Verdict.
JENNINGS RECEIVED AN UNDULY EXCESSIVE SENTENCE. (Not Raised Below.)
In a pro se supplemental brief, defendant challenges the applicability of NERA to his first-degree robbery conviction.
At trial, the State established that, on January 22, 2005, at approximately 9:20 p.m., a Newark Chinese Restaurant named the Great Wall was robbed by an African-American man carrying what appeared to be a gun. At the time, no customers were in the store, but four workers were in the restaurant area, and four were in the back. According to Tony Zhang, the restaurant's manager and only employee to testify, the man entered the restaurant, holding a gun, and demanded that Zhang remove the money from the restaurant's cash register. After the man took the money, he stepped back toward the door, but just then, Newark Police Officer Thomas Roe, on break at the time and seeking food, pulled up in his police cruiser. As the man backed out of the restaurant, Zhang pointed and shouted "robber" and "robbery." The man fled, running, with Roe in pursuit. After a short chase the man stopped at an intersection that Roe testified was located at the corner of West Market Street and Fairmount Avenue. Roe testified that he ordered the man to raise his hands and to turn around to face the officer. However, the man, who allegedly was "moving his hands about his waist area" ignored the police commands and continued to move his hands until he tossed a dark object to his right side. Roe then brought the man to the ground by a kick in the knee and forced him to lie prone on his stomach by administering "a knee strike in the torso area." After reinforcements arrived, the man, later identified as defendant, was handcuffed. A search incident to arrest disclosed $134 in paper currency, which was confiscated and later returned to Zhang. Roe then retrieved the black object from a nearby snow pile, determining that it was a black plastic handgun. When asked to describe the defendant's clothing at the time of arrest, Roe stated that he was wearing a black coat, hat and gloves, and a ski mask. Zhang subsequently identified defendant as the robber at the scene of the arrest.
Defendant testified at trial on his own behalf. He stated that, on the evening in question, he had left his residence, located at 250 Georgia King Village, to purchase loose cigarettes at Elvis Groceries on Central Avenue. However, when he got there, the store was closing, so he started home, taking a different route. Defendant stated that, while returning, he saw a couple of people on the street, and then defendant testified:
I had a gentleman, some girl, a guy - someone ran past me, I don't know who it was. They just ran pass me, just - whoosh.
Approximately ten seconds later, someone came running down the street with a gun drawn, stating: "Get down, get down." When the person drew close enough for defendant to see he was a police officer, defendant got down, was kicked in the side, punched in the jaw, and handcuffed. Defendant denied possession of the money and the gun, and he denied both that he had visited the Great Wall restaurant that evening and that he knew Zhang.
In summation, defense counsel challenged Zhang's identification of defendant by noting that Zhang had the opportunity to view only the robber's eyes and nose at the time of the robbery; that Zhang expressed surprise when asked at trial if the robber was in court, stating, "Oh is he here today?" and that Zhang was told that the robber had been caught before he was called upon to identify defendant. Counsel also noted discrepancies in the description of what the robber was wearing. Zhang stated that he had "[s]omething like a towel or a stocking or sock" on his face, whereas Roe stated that he had been wearing a ski mask, and defendant testified that he had been wearing a blue wool hat. Yet, the police had not preserved defendant's head covering as evidence. Further, the State had not called as witnesses any of the other restaurant employees who were present when the robbery occurred. Defense counsel also noted Zhang's inability to determine the amount of money that had been stolen from the restaurant, and both the absence of a chain of custody for the funds when under police control and the absence of a foundation for claimed facsimiles of the money that the prosecutor sought to introduce into evidence. A discrepancy as to the site of the arrest between the testimony of Roe and of defendant was also noted.
Summations were concluded on a Thursday afternoon, and the jury was charged on Friday morning, December 16, 2005. It commenced its deliberations at 10:20 a.m. Shortly before noon, the jury simultaneously sent two notes to the judge, which asked the following questions:
1. Did the cop remove money from the defendant?
2. Please read back the route to and from [defendant] Jennings home (his entire route that night).
3. What direction was the supposed guy running from when he ran passed Jennings?
4. Can we have all of the papers submitted as evidence to review?
5. A copy of Officer Roe's ...