On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-12-3039.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Wefing, Parker and R. B. Coleman.
Following a trial before a jury with co-defendant Leonel B. Reyes, defendant Frias Ozonia-Ambierix appeals from a judgment of conviction based upon a jury verdict finding him guilty of armed robbery, N.J.S.A. 2C:15-1, but not guilty of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d and not guilty of possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5d. We have considered the arguments advanced by defendant in light of the facts and the applicable law, and we affirm the conviction and the sentence imposed.
The record discloses the following facts. Between May and November 2002, Stelianos Lazaridis (Lazaridis) worked as a supervisor at a nightclub in the Bronx, New York, owned by George Corkis (Corkis), who lived in Fort Lee, New Jersey. Lazaridis was responsible for taking the nightly receipts from the Bronx club and a Brooklyn club, also owned by Corkis, to Corkis's home in Fort Lee. During the week, if the daily receipts were not a significant amount, Lazaridis would take the money to his own home in Cliffside Park for the evening and deliver it to Corkis the next day. The weekend receipts, however, involved such a significant amount of money, Lazaridis would take the cash to Corkis's home every weekend night. The nightclub used plastic bags with combination locks to store and transport the money. When Lazaridis left the club each night, he was accompanied to his car by a bouncer who then followed him in another vehicle as far as the George Washington Bridge.
During the early morning hours of Saturday, November 9, 2002, Lazaridis took the evening's receipts to Corkis's home in Fort Lee and delivered the money to him. Lazaridis then drove to his home in Cliffside Park, arriving there at about 5:30 a.m. Prior to parking his car, Lazaridis drove around the block to make sure that no one was in the area. He implemented these safety measures after his car was broken into a few years earlier, and also because someone had once approached him after leaving the club. Lazaridis had the "feeling [that] people were following [him]."
After driving around the block, Lazaridis returned to his street and parked the car. He exited his car, carrying some personal belongings, his cell phone and some compact disks, and wearing a gold bracelet on his wrist. As Lazaridis walked toward his home, a man wearing a black jacket and a baseball hat, later identified as defendant, suddenly appeared at his side "from nowhere." Both men stopped. As Lazaridis changed his traveling direction, Frias did the same. Lazaridis walked toward his car and Frias followed. Lazaridis kept the car between himself and Frias, positioning Frias at the opposite end of the vehicle.
Finally, Lazaridis asked, "What the f--- you want?" Frias approached Lazaridis while holding in his hand a knife measuring between five to seven inches long and two inches wide. When Lazaridis saw the weapon, he screamed and yelled "police" several times. Frias never made any demand for property nor did he make any overt gesture toward Lazaridis.
As Lazaridis ran away, he tried to dial 911 on his cell phone. While running down the street away from defendant, Lazaridis saw a second man, later identified as co-defendant Reyes, approach him. Reyes came running quickly toward Lazaridis from the direction of Anderson Avenue with his hand in his pocket. Both suspects fled down Anderson Avenue before turning east toward Jersey Avenue.
After several attempts, Lazaridis was finally able to contact police on his cell phone and to report what had happened. Cliffside Park Police Officer Pasquale Dorito was dispatched to the area of Jersey and Anderson Avenues. The officer met with Lazaridis, who appeared very nervous and excited. Lazaridis told the officer what happened and gave a physical description of the two men involved. Officer Dorito and Lazaridis then drove around the neighborhood together in the patrol car looking for the suspects. When they could not find them, Officer Dorito drove Lazaridis home.
Cliffside Park Police Officer Michael Messenger was also on duty in the neighborhood during the early morning hours on November 9, 2002. After receiving a call from police headquarters with a description of the two suspects, Officer Messenger drove to the intersection of Jersey and Anderson Avenues. He drove through the surrounding neighborhoods, including Palisade Avenue, looking for the suspects. When Officer Messenger saw two men, who fit the description of the suspects, walking north on Palisade Avenue, he directed them to stop. The men, later identified as defendant and Reyes, complied with the officer's instruction. When the officer asked the men what they were doing and why they were in the area, Reyes responded, in English, that they were just walking around. Frias did not respond. Reyes then explained that they had taken a cab to visit his girlfriend who lived in Passaic, but were mistakenly dropped off in Cliffside Park. Neither was able to explain why the cab had dropped the men off in Cliffside Park rather than Passaic.
Officer Messenger contacted police headquarters about the stop. As a result, Officer John O'Toole went to Lazaridis's home, picked him up and drove him to Palisade Avenue. At the direction of the police, the taller of the two suspects, Reyes, walked up to the police car where Lazaridis was seated. From a distance of about ten feet, Lazaridis was able to identify Reyes as one of the suspects. Next, the police instructed Reyes to place on his head the tan beret he was holding. When he did, Lazaridis responded by saying he was "absolutely sure" Reyes was one of the assailants. Then, defendant, the shorter of the two men, walked up to the police car where Lazaridis was seated. At that time, Lazaridis identified defendant by saying "absolutely, that's him. He's the one with the knife."
The police arrested defendant and Reyes after Lazaridis identified both of them as the suspects. The police, however, were unable to locate the knife after searching both men and the surrounding area.
Defendant and Reyes were tried together between July 2, 2003 and July 10, 2003. On July 10, 2003, the jury returned its verdicts finding defendant guilty of first degree armed robbery and finding Reyes guilty of second degree robbery as a lesser offense under count one. Both men were found not guilty on the weapons offenses, counts two and three of the indictment. On September 5, 2003, Reyes was sentenced to a seven-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On June 24, 2005,*fn2 the court sentenced defendant to a fifteen-year prison term subject to a period of parole ineligibility and a five-year term of parole supervision under NERA. The court ordered that this term be ...