On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-06-0766.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and LeWinn.
On July 8, 2004, defendant Jayson P. Thompson was indicted along with co-defendant Ryne Usher-Swift on the following charges: first-degree robbery, N.J.S.A. 2C:15-1(a)(2) (counts one and ten); first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a)(1) (counts two and eleven); third-degree theft, N.J.S.A. 2C:20-3 (counts three and twelve); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts four and thirteen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts five and fourteen); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts six and fifteen); second-degree kidnapping, N.J.S.A. 2C:13-1(b)(1)(count seven); first-degree carjacking, N.J.S.A. 2C:15-2(a)(2) (count eight); first-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-2(a)(2) (count nine); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count sixteen).
Defendant and Usher-Swift were tried separately.*fn1 Defendant was tried to a jury on May 17, 18, and 19, 2005. At the end of the State's case, the trial judge granted the prosecutor's motion to dismiss counts six, fifteen and sixteen. The jury acquitted defendant on counts four and five, convicted him of second-degree robbery on count one and on all remaining counts as charged.
On June 24, 2005, the trial judge imposed the following sentence: on count eight, seventeen years imprisonment with an eighty-five percent parole disqualifier and a five-year period of parole supervision; on count one, six years imprisonment with an eighty-five percent parole disqualifier and a three-year period of parole supervision, consecutive to count eight; and on counts ten and fourteen, six years imprisonment with an eighty-five percent parole disqualifier, both concurrent to count eight. Sentences on these counts were imposed pursuant to NERA. Counts two and three merged for sentencing purposes into count one. Counts seven, nine and thirteen merged into count eight. Counts eleven and twelve merged into count ten. Defendant's aggregate sentence was twenty-three years, with an eighty-five percent parole ineligibility period, and eight years of parole supervision upon release.
Defendant now appeals, raising the following issues for our consideration:
THE DEFENDANT IS UNDER NO OBLIGATION TO VOLUNTEER TO THE AUTHORITIES AT THE FIRST OPPORTUNITY THE DURESS HE LATER CLAIMS AT HIS TRIAL AND CANNOT BE PENALIZED DIRECTLY OR INDIRECTLY IF HE DOES NOT. THE PROSECUTOR'S IMPROPER COMMENTS ON HIS SILENCE AND THE FAILURE OF THE TRIAL JUDGE TO GIVE A LIMITING INSTRUCTION REQUIRES A NEW TRIAL (Not Raised Below).
POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD MERGE INTO THE ROBBERY CONVICTION PURSUANT TO STATE V. DIAZ.
AGGRAVATING FACTOR 13 WAS IMPROPERLY FOUND THEREFORE THE MATTER SHOULD BE REMANDED FOR RESENTENCING (Not Raised Below).
THE IMPOSITION OF CONSECUTIVE PERIODS OF PAROLE SUPERVISION VIOLATES N.J.S.A. 2C:43-7.2C (Not Raised Below).
DEFENDANT'S OVERALL SENTENCE IS EXCESSIVE AND VIOLATIVE OF FUNDAMENTAL FAIRNESS UNDER STATE V. MILLER (Partially Raised Below).
DEFENDANT'S SENTENCE SHOULD BE REMANDED PURSUANT TO STATE V. NATALE (Not Raised Below).
For the reasons that follow, we affirm defendant's convictions, merge certain counts, and remand for re-sentencing.
On August 20, 2003, at approximately 11:00 p.m., Sheldon Levy exited the Pit Stop Pub in Roxbury Township. As Levy approached his van parked in a nearby lot, he observed two men run towards his vehicle. Levy described the men as black or tanned with broken accents; one was wearing a bandana. When Levy opened the door to his van, one of the men pointed a handgun at him and informed him it was a "stick up." Levy tossed his wallet, keys and cell phone out the window. The assailants picked up his belongings and fled. Levy then contacted the police.
Approximately three hours after Levy was robbed, Katherine Thomas left her boyfriend's house in the Flanders section of Roxbury Township. As she drove toward an intersection, she observed two men standing on a nearby island. One of them jumped in front of her vehicle, causing her to come to a stop. Thomas then heard one of the individuals tapping on her window and saw a gun pointed at her. The assailant holding the gun opened the door, entered the vehicle and sat next to Thomas. The other man, whom Thomas identified as co-defendant Usher-Swift, entered the vehicle and sat behind her. Thomas testified that the man sitting beside her was wearing a bandana to cover his face. She also testified that the men referred to one another as "Jit and Juve or Juva" and spoke "some sort of Creole language."
The men demanded that Thomas drive them to East Orange. During the ride, the men ordered Thomas to stop and withdraw twenty dollars from an ATM; they also took her cell phone and $100 from her wallet. The two men finally exited Thomas's car at a gas station, threatened to kill her if she informed the police and walked away. Thomas then drove home, woke her parents and contacted the police.
On September 17, 2003, approximately one month after the crimes, based upon information received from Usher-Swift, the police found Levy's wallet and keys near the Roxbury train station. Latent fingerprints found on Levy's van were confirmed to be defendant's. On September 18, 2003, the police executed a search warrant at defendant's residence and found a blue bandana in defendant's bedroom.
Defendant testified at trial. He stated that Usher-Swift is his cousin. On the night of August 20, 2003, the two men went to Roxbury to meet a young lady. While defendant was trying to make telephone contact with her, he observed Usher-Swift approach an individual in a van, holding a handgun which defendant saw then for the first time. Defendant saw the individual hand his keys to Usher-Swift. Defendant tried to leave the scene; however, Usher-Swift stopped him and told him: "[I]f you ever try and leave or run,. . . you're going to get it too."
Defendant testified that he tried to run away from Usher-Swift into the bushes at the train station; however, Usher-Swift came up right behind him. Defendant stated that he made no further efforts to run because, "at that point, . . . I felt like I didn't have a choice, . . . because after all he . . . pointed the gun at me . . . so I'm like . . . feel like I had no choice. I was threatened at that point, felt like I was threatened at that point."
While they were hiding in the bushes, a police car drove into the parking lot. Usher-Swift told defendant to "just stay quiet[.]" Defendant knew Usher-Swift had a gun, and complied.
After the police car left the parking lot, defendant and Usher-Swift left the area and walked along a roadway. Thomas's car approached, slowing at the traffic light. Usher-Swift went in front of the car. Defendant made no effort to run away because he did not know what Usher-Swift was planning to do.
When Usher-Swift entered Thomas's car, he motioned for defendant to do the same. Defendant entered the front passenger seat. He observed that Thomas was "scared" and told her he would not let Usher-Swift hurt her. Defendant testified that he entered Thomas's car because he felt "forced to get in" by Usher-Swift. Defendant testified that he felt threatened by Usher-Swift "from the very beginning" when Usher-Swift pointed his gun at defendant.
On cross examination, the following colloquy occurred between defendant and the prosecutor, which forms the basis of ...