On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 04-04-0094.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2008
Before Judges Reisner and Alvarez.
A Sussex County grand jury returned a multi-count indictment against defendant, John A. Hryhor, and two co-defendants, Erich Fetterman and Casey Pullis, related to a gas station robbery. Defendant was charged with first-degree robbery, N.J.S.A. 2C:15-1(a)(1); conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) and N.J.S.A. 2C:2-6; possession of a weapon, a hammer, for an unlawful purpose, N.J.S.A. 2C:39-4(d); and third-degree attempted theft, N.J.S.A. 2C:20-3(a), N.J.S.A. 2C:5-1, and N.J.S.A. 2C:2-6. Following a jury trial, defendant was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:15-1; second-degree robbery, N.J.S.A. 2C:15-1(a)(1); and third-degree attempted theft, N.J.S.A. 2C:20-3(a), N.J.S.A. 2C:5-1, and N.J.S.A. 2C:2-6.
Defendant was sentenced on the robbery count to a seven-year term with 85% parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a concurrent seven-year sentence on the conspiracy count, and a five-year concurrent sentence on the theft count.*fn1 Appropriate fees and penalties were imposed. We affirm the convictions, but remand for merger of the conspiracy and attempted theft convictions into the robbery conviction.
The following facts were developed at trial. During the late evening hours of May 22, 2003, a passerby noticed two men wearing hooded jackets running out of a gas station in different directions; one of them was holding something metal. The witness, Brenda Snyder, asked her husband to turn the car around, and they drove back to the Gas-A-Rama located in Sandyston. Upon entering the building, she saw the gas station attendant bleeding from the head and noticed that paramedics and police were arriving.
Trooper Christopher Kay arrived at the Gas-A-Rama within minutes of being dispatched there at 10:51 p.m. He found the attendant, Nasib Singh, sitting by the gas pumps, bleeding profusely from the head. Although Singh spoke English, he was difficult to understand and appeared "agitated." Singh told Kay that he had been counting the day's receipts at the end of his shift when two masked men entered the office, hit him on the head with a hammer, and demanded money. Singh estimated that the men took about $1000. After they left, Singh called his roommate for help.
Singh was treated at the scene by Francine Konecke, an emergency medical technician. Konecke described Singh as "highly excited . . . speaking in his native language." He explained that he had been robbed while working and hit with a hammer-like object. When she inquired further, Singh told Konecke that he had been hit by a hammer. The language barrier made communication difficult, and Konecke had to repeat questions three or four times in order to receive responses. Singh was taken to a local hospital for treatment.
Edward Vikhrov, the manager of the gas station, testified that more than $700 was missing from that day's receipts. He also said that Singh and his roommate stopped working at the station shortly after the robbery, and that their whereabouts were unknown.
Because defendant had been observed in a parking lot of a nearby tavern prior to the robbery, he was immediately identified as a possible suspect and interviewed by police. When interviewed, he said that on the night of the robbery he drove his co-defendants to a sports shop so that Pullis could buy a fishing license. The sports shop is located next to the parking lot where defendant had been seen.
Fetterman, who was eighteen, gave police a detailed, recorded confession in which he explained that he and nineteen-year-old Pullis had spent time fishing with defendant, who was then thirty-four years old, on the day of the crime. The men hatched the plot in the late afternoon and intended to use the proceeds to buy cocaine. Fetterman supplied two masks to be used as a disguise. He claimed that it was Pullis who suggested that a weapon be used during the robbery and that defendant retrieved a hammer from the tool box in the trunk of his car to be used for that purpose. Fetterman described the hammer as a "claw hammer" with a metal handle and a black grip made out of "composite rubber." Fetterman and Pullis were to actually enter the station, while defendant would be the driver. Fetterman said that it was Pullis who hit the attendant with a hammer at least twice, while Fetterman only hit the attendant with his hands when the attendant grabbed at his mask. Fetterman claimed that he ran back to the car without taking any money and that Pullis followed shortly afterwards. Defendant drove Fetterman and Pullis to Fetterman's house first and then to Pullis's house. They burned Pullis and Fetterman's blood-stained clothing, as well as the masks, in a fire pit in a nearby field. After the robbery, Fetterman returned the hammer to defendant. The men agreed that, if questioned, they would explain their presence in the vicinity that night as attributable to Pullis's intent to obtain a fishing license from the sports shop located near the gas station.
At trial, Fetterman admitted to spending a "couple hundred dollars" a week on cocaine and marijuana during the time in which the robbery was committed. Fetterman, who pled guilty to robbery and aggravated assault and received a six-year term subject to NERA, acknowledged that his agreement to testify against his co-defendants was a term of the plea. Fetterman mistakenly testified that he could have risked life in prison if he had gone to trial on the indictment, as opposed to the actual maximum sentence he could have received of up to twenty years. His statement to police was consistent with his trial testimony.
Pullis also confessed when interviewed by police. In contrast to Fetterman, Pullis claimed that it was defendant who suggested the men commit a robbery, and that it was defendant who pressured Pullis and Fetterman into participating, although it was Pullis who picked closing time as the hour for the robbery. At trial, Pullis corroborated Fetterman's testimony about the use of masks, but described the gloves they used as only grey work gloves, not leather as Fetterman had testified.
Pullis told police that a hammer was used as a weapon, but at trial, he stated that defendant removed a hatchet from his truck. Pullis described the hatchet as having a metal handle with a black rubber grip. On cross-examination, Pullis explained that when he told police the weapon was a carpenter's hammer with a blue handle marked by black letters and a yellow triangle, he had not understood the difference between a hammer and a hatchet. Pullis agreed that the description of the hammer that he gave in his statement was a lie and explained that he just went along with the police when they told him that a hammer was used during the robbery. Pullis said ...