On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-01-0312.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 12, 2008
Before Judges Cuff and Lihotz.
Following a jury trial, defendant Nathan D. Yates was convicted of first degree robbery, N.J.S.A. 2C:15-1 (count one); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); third degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count three); fourth degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f (count four); and second degree eluding arrest, N.J.S.A. 2C:29-2b (count five). In a separate proceeding, the jury found defendant guilty of second degree certain persons not to have a weapon, N.J.S.A. 2C:39-7 (count six). After merging count two with count one, Judge Snyder imposed a mandatory extended term of twenty-five years in prison subject to a NERA*fn1 85% parole ineligibility term. He also imposed concurrent five-year terms of imprisonment on counts three and four; a concurrent eight-year term on count five; and an eight-year term with a mandatory five-year term of parole ineligibility on count six to be served consecutive to count one. The aggregate term is thirty-three years; twenty-six years and three months of which must be served without parole eligibility. The appropriate fines, penalties and assessments were also imposed.
The conviction arises from a robbery of a family owned and operated food store in Sicklerville. On May 7, 2002, at approximately 9:45 p.m., Navinchal Patel was behind the counter of the store standing at the register. A man, later identified as defendant, walked into the store. He was wearing a black, hooded jacket or sweatshirt. Defendant approached the counter, pointed a big, silver gun at Patel's face, and demanded money. Patel opened the registers and gave defendant between $200 and $300. Defendant ran from the store. As he did so, Patel's son, Pranesh, entered the store. Pranesh Patel described defendant as a six feet tall, thin, black man wearing a black, hooded sweatshirt. The son observed defendant get into a white Ford Taurus with Pennsylvania plates that contained the letters "ED or "EK" and make a right turn from the parking lot onto Hickstown Road.
The Gloucester Township police arrived at the store within minutes of the robbery. Approximately fifteen minutes later, Gloucester Township Police Officer Michael McDonnell observed a white Ford Taurus with a single occupant, bearing Pennsylvania license plate number EKD-0350, in the northbound lane of Route 42. McDonnell followed the car and observed the driver reaching into the back seat. The officer activated the overhead lights and the driver of the Taurus pulled onto the shoulder of the road. Within seconds, however, the Taurus accelerated and returned to the highway. McDonnell activated the siren and commenced a pursuit. Traveling at speeds in excess of ninety miles per hour, the driver of the Taurus lost control of the car on an exit ramp of Route 676. The Taurus struck a fence and flipped over onto the passenger side. McDonnell approached the car but the driver was gone. The driver was not apprehended that evening.
Pranesh Patel identified the Taurus as the car used by the robber. A black sweatshirt was found in the trunk of the Taurus, as well as a silver handgun and four hollow nose bullets. A plastic bag in the pocket of the black sweatshirt contained $180 in five and ten dollar denominations.
The driver of the Taurus left the keys in the ignition. The keychain contained a supermarket shoppers card and a mailbox key. The shopper's card was registered to Veronica Yates, defendant's wife. The mailbox key opened the mailbox at the apartment complex where defendant lived with his wife. Detectives found defendant's driver's license and social security card in the glove box of the Taurus and the registration card for the car.
Navinchal Patel identified defendant from a photo array the day after the robbery. He was unable to identify defendant at trial.
On appeal, defendant raises the following arguments:
THE PROSECUTOR'S REMARKS IN SUMMATION, WHICH VOUCHED FOR THE CREDIBILITY OF THE STATE'S WITNESSES, WERE ERROR AND DEPRIVED THE DEFENDANT ...