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State v. Demby

April 4, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMAR DEMBY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-12-4702.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 28, 2008

Before Judges Lintner and Alvarez.

Following a jury trial, defendant, Jamar Demby was convicted of disorderly persons theft, N.J.S.A. 2C:20-3(a) (count one);*fn1 first-degree robbery, N.J.S.A. 2C:15-1 (count four); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count nine). On count four he was sentenced to eighteen years imprisonment subject to an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and nine years of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c), to be followed by a consecutive term of eight years on count nine, subject to five years without parole eligibility as required by the sentencing provisions of N.J.S.A. 2C:39-7(b)(1). Count five was properly merged into count four. A term of six months was imposed on count one concurrent to count four, and a term of five years on count six was also made concurrent to count four. Appropriate fines and penalties were also imposed. Defendant appeals, and we affirm.

The charges result from two separate incidents, the first of which occurred on July 15, 2004. On that date, defendant entered an RXD pharmacy in Camden and demanded cigarettes. The sales clerk, Adaliz Santos, responded by saying, "[G]ive me the money first." Defendant lifted his shirt and displayed a brown handle to an object which Santos believed to be a gun, and proceeded to help himself to cigarettes from behind the sales counter.

Two days later, on July 17, 2004, defendant returned to the store and went behind the sales counter. Santos and the pharmacist, Chetal Prajapati, were in the back of the store working. Prajapati noticed defendant and said "excuse me." Defendant replied by lifting his shirt, and exposing a gun tucked into his pants. He pulled it out, put his finger on the trigger, and asked "what?" Having effectively silenced Prajapati and Santos, he put the gun back into his waistband and continued to help himself to cigarettes.

Prajapati, who had some experience with handguns, testified at trial that the gun displayed during the July 17, 2004, incident was a nine millimeter weapon, black, with maybe some brown, and approximately six inches long. She also testified that defendant had actually stolen cigarettes from the store on a prior occasion, on July 13, 2004, while in the company of an unidentified man. No charges were filed as a result of that event.

All the incidents occurred in the morning in broad daylight. Santos, as well as Monica Calderone, a store employee who witnessed the July 15 incident, identified defendant's photo from an array they were shown by police. No gun was ever recovered. At trial, Santos identified defendant as the perpetrator, as did Calderone.

On appeal, defendant raises the following issues for our consideration:

POINT I

THE JUDGE VIOLATED DEFENDANT'S RIGHT TO SELF-REPRESENTATION WHEN HE DENIED THE DEFENDANT'S MOTION TO PROCEED PRO SE.

POINT II

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

In his pro se brief, defendant contends the following points warrant reversal:

POINT I

DEFENDANT[']S CONVICTION ON COUNT [FOUR] ROBBERY IS ...


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