On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-12-2993.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 5, 2008
Before Judges Winkelstein and LeWinn.
Defendant, Wayne Stevens, was indicted along with co-defendant, Donny Reevey, on the following charges: use of a juvenile to commit a first-degree crime (robbery), in violation of N.J.S.A. 2C:24-9(a) (count one); first-degree armed robbery, in violation of N.J.S.A. 2C:15-1 (count two); second-degree burglary, in violation of N.J.S.A. 2C:18-2 (count three); and fourth-degree theft of movable property, in violation of N.J.S.A. 2C:20-3(a) (count four). The indictment also charged defendant individually with third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d) (count five), and fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(d) (count six). Co-defendant Reevey was individually charged with third-degree resisting arrest, in violation of N.J.S.A. 2C:29-2(a)(3) (count seven), and third-degree aggravated assault on a police officer, in violation of N.J.S.A. 2C:12-1(b)(5)(a) (count eight).
Prior to trial, the trial court granted the prosecutor's motion to dismiss counts four, five and six. Following a four-day trial, a jury found defendant and Reevey guilty on all remaining counts.
On September 23, 2005, the court sentenced defendant as follows: count one, twelve years with a six-year period of parole ineligibility; count two, fifteen years with an 85% parole ineligibility period; and count three, ten years with a five-year period of parole ineligibility. All sentences were made concurrent to each other.
Defendant now appeals, raising the following issues:
POINT I THE COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT DEFENDANT COULD HAVE BEEN CONVICTED OF SECOND-DEGREE ROBBERY EVEN IF A CO-DEFENDANT WAS GUILTY OF ARMED ROBBERY. (Not Raised below.)
POINT II THE COURT ERRED IN FINDING THAT [THE VICTIM'S] PRIOR STATEMENTS WERE ADMISSIBLE AS SUBSTANTIVE EVIDENCE
POINT III THE 15-YEAR AGGREGATE TERM IMPOSED WAS MANIFESTLY EXCESSIVE UNDER ALL APPLICABLE CIRCUMSTANCES
Having reviewed the entire record, we conclude that the trial judge erred in his charge to the jury on accomplice liability. Therefore, we reverse defendant's conviction and sentence on count two of the indictment and remand for further proceedings.
On July 24, 2004, at approximately 4:00 a.m., Gregory Covington was watching television in his apartment. He heard a knock on his door and, when he opened the door slightly, he saw a man wearing a facemask. Covington closed the door and secured the deadbolt lock. As Covington started to walk into his bedroom, he felt someone push him from behind.
Covington testified that he was pushed into his bedroom and onto his knees face-down on his bed. A "white guy" held something to the back of Covington's head and asked him where his money and drugs were. When Covington replied that he had none, his bracelet was removed from his wrist and a cover was placed over his head. Covington testified that he could still see movement in the room, but was not certain how many individuals were present.
A neighbor, Helen Brown, called the police when she observed a man wearing a black mask and dark clothing outside Covington's apartment door. Officer Tiffanie Dill and Detective Wayne Davis arrived shortly thereafter, and Ms. Brown directed them to Covington's apartment.
Dill and Davis observed that the front door of Covington's apartment was broken and standing ajar. The police officers entered and encountered a man with a gray shirt around his head, later identified as Reevey, who tried to slam the door shut when he saw them.
Covington came out of his bedroom at this time and observed the police officers subdue Reevey. Detective Davis then accompanied Covington back into the bedroom while Officer Dill remained with Reevey. In the bedroom, Davis encountered an individual, later identified as defendant, crouching behind a dresser. A third individual was also in the bedroom, later identified as the juvenile, J.H.
Davis ordered defendant and J.H. to the ground, placed them both in handcuffs, and searched them. Davis found a "folding-locking-cliff blade type knife" clipped to defendant's pants pocket, and a "Swiss army-type folding knife" on J.H. Defendant and J.H. were placed under arrest and transported to police headquarters.
J.H. testified that on July 24, 2004, Reevey came to his house at approximately 4:00 a.m.; they walked to another residence and met defendant. Reevey provided J.H. and defendant with "masks and stuff[.]" J.H. had a Swiss army pocket knife in his possession. He observed Reevey give defendant a ...