On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-03-0676.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Gilroy.
Defendant Dashon Lee appeals from a judgment of conviction entered on July 28, 2006 after a jury found him guilty of second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 15-1 (Count One); and first degree robbery, N.J.S.A. 2C:15-1 (Count Two). After Count One was merged into Count Two, defendant was sentenced to a term of seven years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
The charges against defendant arose out of an incident on November 1, 2005, when Edun Obaze and his cousin Emanuel Inekhomo were walking along the sidewalk on South 16th Avenue in Newark. As Inekhomo realized that they were being followed, someone grabbed Obaze from behind and pulled him backwards. Inekhomo ran and Obaze faced a group of four or five young men, three of whom were armed with handguns. The young men crowded around Obaze and began punching him and pointing the handguns at his neck, chest and abdomen. The young men demanded that Obaze turn over his belongings to them.
Obaze did not want to give up his wallet, which was in his back pocket, because he had his green card and social security card in it. He gave the young men his cell phone from his front pocket, hoping they would be satisfied with it. Nevertheless, the group knocked him to the ground, kicking and dragging him along the ground.
Fortuitously, Newark Police Officers Hussein Sara and Raul Oliveras were patrolling South 16th Avenue at the time Obaze was being attacked. Sara spotted the group of young men he thought were wrestling. The officers observed several of the young men with weapons but could not determine who was the victim.
When Obaze ran from the crowd to the police car shouting: "They robbing me," the young men ran in all directions. Notwithstanding the police presence, defendant attempted to grab Obaze's wallet from his back pocket and was the last to run away. Sara got out of the police car, saw that defendant was holding a silver handgun, and chased him on foot. As they were running, Sara saw defendant throw the weapon over some high bushes.
Meanwhile, Oliveras circled the block in the police car and cut off defendant. The two officers then placed defendant in handcuffs. Sara searched the area behind the high bushes and found the silver handgun, only then realizing that it was a replica.
The officers drove defendant back to the scene of the robbery, where Obaze was waiting with other officers who had arrived at the scene. Approximately three to five minutes after defendant had run from the scene, Obaze identified him as one of the robbers. When the officers searched defendant, they found two cell phones, one of which Obaze identified as his.
At trial, defendant testified that at the time of the incident he was walking on South 16th Avenue when he saw Obaze as he "ran into the group of guys that was out there, and what I seen [sic] was one of the guys grabbed him, grabbed him onto the car, put him on the car . . . . [F]rom what I was seeing, he [Obaze] just threw his hands up in the air, put his hands up in the air." Defendant testified that, "[W]hen I visualized the group of guys at -- over there by the car, that's when I immediately ran down there . . . . [t]o see what was going on." Defendant maintained that he "immediately broke it -- broke the guy up that was robbing the victim." Defendant said that Obaze was screaming and yelling that he didn't have anything and pulled out his cell phone and "gave it to the guy that was robbing him." Defendant claimed that he took the cell phone from the robber and was trying to give it back to Obaze, and that when the robber attempted to run away, defendant grabbed him "so he wouldn't do anything else to [Obaze]."
Defendant testified that when the police arrived, everyone ran away and it was just he and the victim. Defendant claimed: "I went to the police car with the phone in my hand stating to them that I was trying to give the phone back to them. It took them like [fifteen] minutes just for them to get out of the car and realize what was going on." Defendant said he ran away because Oliveras told him to get away from the police car "before I shoot you." That was when defendant "walked off fast." When he walked away, the officer followed him and ...