On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-2629.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and LeWinn.
Defendant Michael Lowman was tried to a jury, which found him guilty of first-degree robbery, contrary to N.J.S.A. 2C:15-1. On May 5, 2006, the court sentenced defendant to a fifteen- year term of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals, challenging his conviction and sentence. We affirm.
Defendant was charged under Essex County Indictment No. 05-11-2629 with conspiracy to commit robbery, second degree, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1 (count one); robbery, first degree, N.J.S.A. 2C:15-1 (count two); making terroristic threats, third degree, N.J.S.A. 2C:12-3a (counts three and four); and hindering his own apprehension, fourth degree, N.J.S.A. 2C:29-3b(4) (count five). Prior to trial, the court granted the State's motion to dismiss counts one, three, and four. In addition, the court granted defendant's motion to dismiss count five. Defendant was tried to a jury on count two.
At trial, Al-Tariq Purdie testified that on the evening of April 4, 2005, he was in "the chicken shack" at Halstead and Central Avenues in the City of East Orange. Purdie heard a lady screaming and looked out the window. Purdie said that a man tried to "snatch" a pocketbook from a woman. Purdie identified the man as defendant. He observed defendant dragging the woman by her purse.
Purdie jumped up, ran out, and started to chase defendant, who dragged the woman from the bus stop "halfway to the corner." The woman let go of her purse. Purdie chased defendant. Defendant threw the pocketbook at Purdie and continued running. Purdie caught up with defendant and started punching him. According to Purdie, defendant told him, "[b]ack up before I shoot you."
Purdie testified that defendant put his hand under his shirt and pointed at him. Purdie said that defendant acted "like he had a gun." Defendant started to run backwards when the police arrived and apprehended him.
Officer Richard McGowan of the East Orange Police Department (EOPD) testified that, at approximately 8:15 p.m. on April 4, 2005, he was in a marked patrol vehicle at an accident scene on Central Avenue and Evergreen Place. Officers R. Correia and Marcos Rodriguez were with McGowan. McGowan said that he observed a group of males running on Central Avenue. He directed Correia and Rodriguez to go in the direction from which the persons were running. McGowan and another officer went "after the people [who] were running."
McGowan caught up with the individuals in a parking lot. Another officer "put out on the radio that there was a female [who had been] robbed of her pocketbook on Central Avenue."
McGowan said that the woman had given the officer a description of the person who took her purse. According to McGowan, one of the individuals he had detained in the parking lot fit the description "to a T."
McGowan identified defendant as that person. He said that the other persons detained had identified defendant as the perpetrator of the robbery. In addition, the victim was brought to the parking lot and she identified defendant as the person who took her pocketbook.
Olubola Akinkunle testified that, on April 4, 2005, at around 8:00 or 8:30 p.m., she was on Central Avenue in East Orange waiting at a bus stop. She explained that she had taken bus #94 from Irvington, where she worked, and got off of that bus on Central Avenue to catch bus #24 to go to Orange where she lived. Akinkunle said that, when she got off of "the 94," she noticed "this gentleman" standing behind her. Akinkunle identified defendant as the person who was standing near her at the bus stop. Akinkunle said that she was "minding" her own business. After waiting about five minutes, Akinkunle asked defendant whether he had seen the #24 bus go by. Defendant replied that the bus had just passed but another bus would be there "very soon."
Akinkunle testified that she recognized defendant because she used to see him "around there" begging for change. She stated that, previously, she had never had a problem with defendant. Akinkunle went into a liquor store and purchased some candy. Akinkunle came out and returned to the bus stop to wait for the bus. Defendant was still there. Akinkunle saw the #24 bus approaching. She took her bus card out of her pocketbook. Defendant was standing very close to her.
The bus pulled up to the curb. Akinkunle started to get onto the bus when defendant began to grab her pocketbook. Akinkunle held onto her purse. She fell to the ground and defendant dragged her. She stated that defendant "kept dragging the purse, dragging the purse, dragging the purse." Akinkunle was shocked. She said that initially she could not scream; however, when defendant got away with her purse, she screamed.
Akinkunle stated that defendant ran away and several persons ran after him. Later, she was approached by a police officer and she gave the officer a description of the person who had taken her purse. She explained that the officer brought her to a place on Halstead Street, where she identified defendant as the perpetrator.
Akinkunle was taken to the police station where she gave the police a statement. At the police station, Akinkunle was shown a photograph. Akinkunle identified the person in the photo as defendant. She said that he was the person who stole her pocketbook and dragged her in the street.
Officer Rodriguez testified that he was on routine patrol on the evening of April 4, 2005. At around 8:15 p.m., Rodriguez observed several individuals running westbound from the intersection of Halstead and Central Avenues in East Orange. Rodriguez went to the corner and he was flagged down "by a young lady." She told him that she had been waiting for a bus with another person and she was getting ready to board the bus when someone "yanked her purse and tried to yank it from her."
Rodriguez said that the lady told him that the strap of her purse got stuck and the individual who was trying to take the purse started to drag her on the ground. The lady provided him with a description, which he immediately "placed over the air[.]" McGowan informed him that the police had detained certain suspects. Rodriguez "grabbed the victim," and drove her in his patrol car to the place where McGowan had detained the suspects. The victim identified defendant as the perpetrator.
Defendant elected not to testify at trial. He did not call any witnesses on his behalf. As stated previously, the jury found defendant guilty of first-degree robbery.
In this appeal, defendant challenges his conviction and sentence. His counsel raises the following contentions for our consideration:
POINT I: THE JURY INSTRUCTION ON ARMED ROBBERY OMITTED THE MENTAL STATE OF "KNOWINGLY" WITH RESPECT TO THE ELEMENT OF SIMULATION OF A WEAPON BY WORDS AND GESTURES -- A CRITICAL ERROR WHERE THE JURY COULD HAVE DOUBTED WHETHER THEY HAD TO FIND THAT THE DEFENDANT KNOWINGLY ...