On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-04-364.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lisa and Simonelli.
Following a jury trial, defendant Algenis DeJesus was convicted of second degree robbery, N.J.S.A. 2C:15-1; N.J.S.A. 2C:2-6, and acquitted of fourth degree aggravated assault, second degree possession of a weapon for an unlawful purpose, and third degree unlawful possession of a weapon. Two additional counts of fourth degree aggravated assault were dismissed by the State prior to the jury verdict. Defendant was sentenced to a six-year, three-month term of imprisonment subject to a No Early Release Act*fn1 85% parole ineligibility term. The appropriate penalties and assessments were also imposed.
Rafael Minaya lived with his family on the first floor of a two-family house at 77 Front Street in Paterson. Defendant and his family lived upstairs. Minaya operated a procurement business. He purchased candy and "Dominican products" from a supplier in North Bergen and delivered the merchandise to his customers. Minaya's customers funded purchases with checks and cash, which defendant stored in a first aid box in his truck. Generally, Minaya hired individuals to assist him in picking up and delivering merchandise. Defendant worked for Minaya for approximately nine months before being fired for refusing to complete a task requested by Minaya. Only defendant and another worker, Fernando Rojas, knew that Minaya stored his cash in the first aid box.
At 5:30 a.m. on July 26, 2002, Rojas and Alvin Alba were working for Minaya. Both were helping Minaya back his delivery truck out of the driveway by signaling that the street was clear of traffic. At that time, Minaya glanced in the right side-view mirror of the truck and noticed defendant approaching him. Defendant opened the passenger door of Minaya's truck, reached in and took the first aid box containing cash receipts, invoices and paperwork. Defendant then retreated to the rear of the truck, out of Minaya's sight.
Thereafter, Minaya glanced in the side-view mirror on the driver side and noticed another individual approaching with a shotgun. Minaya opened his door and kicked the individual in an unsuccessful attempt to seize the shotgun. The attacker ordered Minaya not to move or look at his face. He asked Minaya for the money from the first aid box. Minaya responded that somebody had already taken the box, after which the assailant pushed Minaya to the ground under the truck and held the barrel of the shotgun to Minaya's head. The assailant rifled through Minaya's pockets before entering the cab of the delivery truck.
After three to five minutes, the gunman exited the cab, turned towards the rear of the truck and exclaimed, "okay, let's go." At that time Minaya noticed another man at the rear of the truck, who was restraining Rojas and Alba by holding their hands. This person released his grip on Rojas and Alba and retreated from the scene with the gunman. Minaya arose from the ground, determined that Rojas and Alba were unharmed, and started after his assailants on foot.
Minaya lost sight of his assailants, returned to his residence, awakened his family, and notified them that he had been robbed. Minaya asked his cousin, Darwin Alba (Alvin's brother), to call police because Spanish was Minaya's native language and Alba was more proficient with the English language. Approximately one-half hour after Darwin Alba placed the call to police, a non-Spanish speaking officer arrived at Minaya's residence and questioned Minaya about the robbery. With Darwin Alba translating, Minaya told the officer that defendant had robbed him. Minaya stated that defendant was not wearing a mask, unlike the shotgun-wielding assailant. Minaya could not identify the third assailant. The officer also questioned Rojas and Alvin Alba. Three days later, the Paterson Police Department contacted Minaya seeking a formal statement of the robbery. Minaya provided an interview to detectives at police headquarters on July 29, 2002. That same day, police arrested DeJesus. Minaya identified DeJesus as one of the perpetrators of the robbery through a photograph and in person at police headquarters.
On appeal, defendant raises the following arguments:
THE CONVICTION OF DEFENDANT FOR SECOND DEGREE ROBBERY IS INCONSISTENT WITH HIS ACQUITTALS ON THE AGGRAVATED ASSAULT CHARGES AS ALL OF THESE CHARGES AROSE FROM ...