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State v. Custis

October 16, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PARKER CUSTIS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-08-0795.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 10, 2008

Before Judges Lihotz and Messano.

Defendant Parker Custis appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree robbery, N.J.S.A. 2C:15-1a, and sentenced to a nine-year term of imprisonment with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant raises the following points for our consideration:

POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO DISMISS THE INDICTMENT BASED UPON DOUBLE JEOPARDY, MANDATORY JOINDER AND FUNDAMENTAL FAIRNESS.

POINT II THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED FROM A STATE TROOPER INFERENTIALLY CONNECTING THE DEFENDANT WITH PRIOR CRIMINAL CONDUCT. (NOT RAISED BELOW)

POINT III THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

In a pro se supplemental brief, defendant also argues the following additional points:

POINT ONE DEFENDANT['S] [] [F]IFTH AMENDMENT RIGHT TO THE UNITED STATES CONSTITUTION WAS VIOLATE[D], PRIVILEGE AGAINST SELF-INCRIMINATION.

POINT TWO PETITIONER WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AT THE TIME OF SENTENCE AND DURING TRIAL, WHICH VIOLATED[ ] DEFENDANT'S SIXTH AMENDMENT[] RIGHT TO THE UNITED STATES CONSTITUTION.*fn1

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

The testimony at trial revealed that Bessie Bennett was working as a cashier at the Fairton Sunoco Mini-mart on the evening of August 3, 2004. Shortly before midnight, a masked man came into the store and told her "to open the drawer." She saw what appeared to be "the blade of a knife" in his hand. Bennett could not see his face, though she knew he was African-American and could describe the clothing he wore.

The man was nervous and constantly looking at two other customers who had been in the store when the robbery began. When Bennett "panicked" and was unable to open the cash register, the man fled. Bennett called the police, who responded, and she provided a description of the assailant's clothing, the car he fled in, and his direction of travel. In court, Bennett identified a hat, a scarf, and some gloves as those worn by the robber, as well as a stick wrapped in a paper bag that she believed was the "knife" used that night. A surveillance camera at the Mini-mart recorded the attempted robbery and the State played a videotape of the events for the jury.

Trooper Jeffrey G. Reitz of the New Jersey State Police testified that he received a broadcast of the incident at the Mini-mart over his car radio. He proceeded in the direction of the store and saw a green Suzuki traveling at a high rate of speed. He confirmed that this car fit the description of the one given by Bennett and followed the car. Before he could effectuate a motor vehicle stop, however, the Suzuki pulled over and stopped. Reitz and his partner exited their car, told the driver, defendant, to exit the vehicle, and handcuffed him when he did.

Reitz shone a flashlight in the Suzuki and saw items of clothing that fit the description of those worn by the Mini-mart assailant. He also recovered from the car the "knife" Bennett believed the assailant wielded.

Defendant, who had two prior drug convictions, testified on his own behalf and claimed that on the night in question, he borrowed the Suzuki from a friend to take his family grocery shopping. Later he met James McNair, who was not a friend but someone defendant knew from prison. Defendant gave McNair his phone number, and later that evening, just as he was about to bring the Suzuki back to its owner, McNair called and asked if defendant could drive him to his relatives' house. McNair offered to pay defendant ten dollars for his effort.

Defendant claimed that after he picked up McNair, they bought some beer and drove to his relatives' house, some "four or five houses away from the [Mini-mart]." As he rolled a "blunt" marijuana cigar and smoked it in the car, defendant claimed McNair ran back to the car dressed in different clothing, was sweating and panting, and told defendant he would drive. The two drove to an auto repair shop where McNair exited the car and left the clothing in the back seat. Defendant drove off, but he had only gone a short way when he saw the trooper car following him so he stopped. When the troopers arrested him, ...


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