On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-12-2284.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2008
Before Judges Parrillo, S. L. Reisner and Gilroy.
On December 1, 2004, defendant Martin L. Goins was charged by a Bergen County Grand Jury with two counts of first-degree carjacking, N.J.S.A. 2C:15-2 (Counts One and Three); and two counts of first-degree robbery, N.J.S.A. 2C:15-1 (Counts Two and Four). Tried to a jury, defendant was convicted on both counts of carjacking and of first-degree robbery on Count Four, but on Count Two he was convicted of the lesser-included offense of second-degree robbery.
On March 28, 2006, the State filed a motion seeking to sentence defendant to an extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3a. On May 5, 2006, the trial judge granted the motion, sentencing defendant to an extended term of life imprisonment on his conviction on Count Three; and on his convictions on Counts One, Two, and Four, defendant was sentenced to terms of imprisonment of twenty-five years, eight years, and seventeen years, respectively. All sentences: 1) were made subject to the No Early Release Act (NERA),*fn1 and to parole supervision on release; and 2) are to run consecutive to each other. Defendant's aggregate sentence was life plus fifty years. All appropriate fines and penalties were imposed.
Defendant appeals. We affirm the convictions, and remand for re-sentencing.
Defendant was convicted of carjackings and robberies of two Teaneck taxicab drivers: Shakeel Abassi on August 26, 2004, and Lester Morrigia on September 9, 2004. The following is a synopsis of the relevant facts adduced at trial.
On the evening of August 26, 2004, while working as a nighttime driver for the Teaneck Cab Company, Abassi was dispatched to the Radisson Hotel in Englewood. On arrival at the hotel, Abassi observed a man, later identified as defendant, pacing back and forth on the sidewalk. Abassi described the man as black and wearing a cap, a dark green or black T-shirt with a round collar and half sleeves, jeans with paint stains at the bottom, and white sneakers.
Defendant climbed into the back of the taxi, directing Abassi to drive him to a 7-Eleven convenience store, before commencing to Genesee Avenue, a dead end street surrounded by woods that bordered Teaneck and Englewood. As the taxi approached the 7-Eleven store, defendant directed Abassi to turn onto Genesee Avenue and proceed to the end of the street.
After he stopped the taxi, Abassi, while still looking straight ahead, informed defendant of the amount of the fare.
All of a sudden, defendant grabbed Abassi by his neck. Although Abassi did not see the object defendant poked at his neck, he believed it was a knife and that he was going to be cut. Defendant ordered Abassi to give him his money. Abassi handed defendant money from a recent fare and from his wallet. After Abassi informed defendant he had no more money, defendant told him to park the taxi and to exit the vehicle.
Defendant exited the taxi with Abassi, and then proceeded to grab Abassi by his hair, hitting him over the head with a hard object, which caused Abassi to momentarily black out. When Abassi awoke a few seconds later, he pretended to be dead so that defendant would not harm him any further. From the corner of his eye, Abassi saw defendant enter and start the taxi, at which point Abassi stood up, fearful that defendant would run him over with the taxi. In addition to the money, defendant also took Abassi's cell phone. Abassi, who was bleeding from his face, picked up his wallet and ran to the nearby 7-Eleven store where he called his dispatcher, who, in turn, called the police.
The police arrived on the scene and called for an ambulance to take Abassi to a nearby hospital. When Abassi was released from the hospital a couple of hours later, the police drove him to Teaneck Road to possibly identify the man who had attacked him from a group of four people the police had assembled. As the police car drove slowly by the suspects, Abassi stated that the perpetrator was not in the group. Next, the police took Abassi to an abandoned taxi they had found, which Abassi identified as his. The police then accompanied Abassi back to the Radisson Hotel where he was shown the hotel's surveillance tapes, and from which he identified a man wearing a cap and paint stained jeans as the person who had robbed him. Subsequent to the incident, Abassi looked at photo arrays on three different occasions, and only identified one person in one of the arrays that resembled the robber.
Detective Andrew McGurr testified concerning the police response to the carjacking and robbery of Abassi. After learning of the incident, McGurr went to the hospital to talk to Abassi. In the interim, another officer was sent to review the surveillance tapes of the Radisson Hotel. The officer found footage from the appropriate time of the hotel pickup, which showed a male resembling the perpetrator Abassi had described.
Following Abassi's release from the hospital, McGurr drove him to identify an abandoned taxicab the police had found. Abassi identified the taxicab as the one that had been stolen from him that evening. McGurr then drove Abassi to the Radisson Hotel where he identified a man from the surveillance video as his attacker. The man Abassi identified was wearing a dark colored baseball cap, a dark colored T-shirt, denim jeans with white stains near the bottom of the pant legs, and white sneakers. The T-shirt had a white star on the front with a design across the back shoulders.
Subsequent to the incident, Abassi's taxi was examined by the Bergen County Sheriff's Department Bureau of Criminal Investigation. Fingerprints were found on the exterior driver's side window and on the passenger's side door; a palm print was found on the interior driver's side rear door.
On September 9, 2004, at around 1:30 a.m., the second taxi driver, Morrigia, was dispatched to First Street in Fort Lee. However, on arrival, he did not see anyone waiting for a cab. After approximately one minute, a person walking with an unusual gate and with thick gray hair sticking out from his baseball cap, entered the back of the taxi.
The passenger, also later identified as defendant, directed Morrigia to an address on Genesee Avenue in Teaneck. When the taxi reached the end of Genesee Avenue, defendant ordered Morrigia to "stop the car." Defendant asked Morrigia for change of a $50 bill and, while Morrigia was occupied, defendant placed a sharp object to his throat, demanding his money and wallet.
Morrigia handed over his wallet and money, and exited the taxi as ordered. As defendant exited the taxi, he told Morrigia to walk directly into the woods and not to turn around to look at his face. Defendant told Morrigia that if he did not comply, defendant would have to use his gun. While keeping a sharp object at his throat, defendant walked partially into the woods with Morrigia. Once Morrigia heard the taxi drive away, he turned around and walked to a gas station on Teaneck Road where he called his dispatcher, who then notified the police. The Teaneck Police responded to the call around 1:45 a.m., and found Morrigia's taxi abandoned a few blocks from the crime scene. The taxi was processed, and one palm print was found on the exterior of the driver's side rear door window.
McGurr was also assigned to this case. After Morrigia described his attacker to the police, McGurr asked the Bureau of Criminal Investigation to prepare a photo array. When Abassi viewed the array, which did not include a photo of defendant, he did not identify anyone; however, after Morrigia viewed the same array, he pointed to a photo of S.B., and stated that he was "80% to 90%" sure that S.B. was the culprit. An interview between McGurr and Morrigia revealed that the attacker had longer gray hair than S.B., which had stuck out from under a baseball cap, and that the attacker did not have a mustache or beard.
After S.B. was brought in for questioning, he provided palm prints and fingerprints; but upon comparison to those found on the two taxis, S.B.'s prints did not match. In addition, after observing the surveillance tape from the Radisson Hotel again, McGurr noted that the suspect walked with his knees pitched together, which did not comport with the way S.B. walked.
McGurr testified that after he became aware of the suspect's large size and of his difficulty walking, he realized the unlikelihood that the suspect traveled far after abandoning the taxis, prompting him to focus his attention on an apartment complex located at 1266 Teaneck Road. A resident of the complex, Debbie Owens, drew the police's attention, thus, her car was stopped. The vehicle was registered to Gregory Robinson. A photo of Robinson was obtained, and a new photo array, again without defendant's picture, was shown to the two victims. Abassi did not identify anyone from this array, but Morrigia indicated he was almost 100% sure that Robinson was the perpetrator; however, he wanted to hear the person speak and watch him walk before making a final decision. McGurr pursued the Robinson lead, but soon learned that Robinson had not been in New Jersey for the past several years.
On September 12, 2004, an Englewood taxicab company notified the police of a suspicious telephone call. Patrolman Gregory Rucker of the Teaneck Police Department and several Englewood police officers responded to the address of 241 Epps Avenue in Englewood. Rucker found defendant sitting on a couch on the porch at that address. When Rucker questioned him, defendant responded that the house belonged to a relative and he was waiting for someone to let him in. Defendant was taken to the Englewood Police station where he was questioned by a member of the Teaneck Police Department. Defendant denied involvement in the carjackings. After defendant was photographed, he was returned to his mother's home on Epps Avenue.
On September 23, 2004, McGurr went to Debbie Owens' apartment looking for defendant, but found no one there. Owens stopped by the Teaneck Police station later that day and spoke to McGurr. Based on this conversation, McGurr and Sergeant Kurschner conducted a motor vehicle stop of a car, and found defendant slouched down in its rear seat. McGurr noticed that defendant was wearing a black vest and a black T-shirt that had a star design on the left breast. When defendant stepped out of the car and removed his vest, there was a pattern on his shirt that matched the pattern from the T-shirt on the Radisson Hotel surveillance tape.
McGurr identified himself as the person in charge of the taxicab carjacking cases and asked defendant to accompany him to the Teaneck Police Station. Defendant agreed. On arrival, McGurr told defendant that he wanted to ask him some questions and provided defendant with his Miranda*fn2 warnings before starting the interview. McGurr presented defendant with a flyer that had a photo of the suspect from the Radisson Hotel surveillance tape, and told defendant that he was wearing the same shirt as the person in the photo. Defendant initially denied that the shirts were the same, but then hung his head down and asked "What do you need from me?"
McGurr discussed the two robberies with defendant and asked about the other clothing seen in the surveillance footage. Defendant responded that he had a hat and several pairs of sneakers, but that he had thrown the jeans out. McGurr was skeptical, and asked defendant if he had left any items at Owens' apartment. Defendant answered that he had a large duffle bag containing various belongings in the trunk of Owens' car. Another officer investigated and returned with a plastic bag with jeans identical to those seen in the surveillance tape, down to the paint stains, and a blue baseball cap. Defendant then gave a stenographically-recorded confession to both robberies.
Defendant's sworn confession to both robberies was read into the record at trial. Defendant confessed that on August 26, 2004, he had walked from his house to the Radisson Hotel. Once at the hotel, he used a hotel guest phone to call the front desk and have someone call for a taxi. Defendant's version of events was essentially the same as Abassi's, except defendant denied physically assaulting Abassi and denied taking his cell phone.
Defendant also confessed that on September 9, 2004, he had called for a taxi from a phone booth on First Street. After defendant told Morrigia to take him to Genesee Avenue, he robbed him. Defendant then made Morrigia exit the taxi, and told him to walk away from the vehicle. When Morrigia complied, defendant jumped into the taxi and drove away, abandoning the vehicle a couple of blocks away. Defendant denied threatening Morrigia with a weapon.
On September 24, 2004, Morrigia was shown a third photo array, which included defendant's photo, and it was at this time that Morrigia identified defendant as the person who had attacked him. The palm prints and fingerprints taken from the two taxis were ...