On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 03-12-2497.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2008
Before Judges Wefing, Yannotti and LeWinn.
Defendant Lamar Harvey and two co-defendants, Tiwan Harvey and Darnell Ivery, were charged in Monmouth County Indictment No. 03-12-2497 with the following: second-degree conspiracy, in violation of N.J.S.A. 2C:5-2 (count one); first-degree armed robbery, in violation of N.J.S.A. 2C:15-1 (count two); third-degree possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b)(count three); second-degree possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a) (count four); and second-degree unlawful possession of a firearm by a felon, in violation of N.J.S.A. 2C:39-7(b) (count five). The co-defendants entered negotiated plea agreements, and defendant stood trial alone. Defendant's first trial ended with a hung jury. A retrial was held on seven days between April 26, 2005 and May 6, 2005, at the conclusion of which a jury found defendant guilty of all charges.
On August 19, 2005, defendant was sentenced to an extended term of thirty-eight years pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), with an eighty-five percent parole ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count two; a concurrent term of four years with a two-year parole ineligibility period on count three; and a concurrent term of seven and one-half years on count five. Counts one and four merged into count two.
The trial evidence may be summarized as follows. In 2003, Fred Roberts was employed by Freehold Raceway Park to collect the money deposited into off-track betting machines. Roberts' responsibility was to walk through the facility with a security guard and empty the money from the machines into a canvas bag.
On the evening of September 20, 2003, Roberts performed his duties accompanied by security officer Joe Biel. As Roberts approached the last bank of machines, he felt someone tugging at his canvas bag. Roberts then pulled the bag forward and, as he turned, he was struck on the side of his head and fell to the floor. When Roberts looked up, he saw a black man wearing a baseball hat with a "western style kerchief" tied over his face. These events were captured in a series of photographs by surveillance cameras in the racetrack facility.
Roberts then staggered into a nearby area for "sanctuary." He subsequently received first aid treatment at CentraState Hospital.
Biel testified that he saw a man strike Roberts in the head with a "silver weapon." That man then took the bag of money from Roberts and ran down a nearby staircase towards the exit. Although unable to catch him, Biel followed the individual outside where he observed the man drive away in a car with two other black men; Biel recorded the vehicle's license plate.
Sgt. James Craparotta of the Jamesburg Police Department learned that the car in which the robbers had fled was registered to Jamie Williams. Craparotta began a surveillance of Ms. Williams' residence on the night of the robbery. Craparotta observed defendant leave Ms. Williams' residence in her vehicle. Craparotta and Patrolman Smith stopped the vehicle and arrested defendant.
Craparotta and Detective Giglio from the Freehold Borough Police Department then went to Ms. Williams' apartment. The officers explained to her why they were there, and Ms. Williams consented to a search of her apartment. The police found "thousands of dollars" in cash stuffed into a man's shoe and a silver handgun in a drawer.
Defendant testified and denied any involvement in the robbery at the racetrack. He admitted that the $9,500 found in his shoe in Ms. Williams' apartment belonged to him, but explained that the cash came from drug sales.
On appeal, defendant raises the following arguments for our consideration:
THE JUDGE'S INADEQUATE INQUIRY INTO THE JURORS' CONTACT WITH DEFENDANT OUTSIDE THE COURTROOM, WHILE HE WAS IN RESTRAINTS AND IN THE CUSTODY OF SHERIFF'S OFFICERS, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST. AMENDS. VI, XIV; N.J.CONST. (1947) ART. I, PARS. 1, 9, 10.
THE JUDGE'S FAILURE TO INSTRUCT THE JURORS THAT DEFENDANT COULD BE FOUND GUILTY OF ROBBERY OR THEFT AS AN ACCOMPLICE, ON THE BASIS OF HIS OWN MENTAL STATE, EVEN IF OTHERS INVOLVED HAD THE MENTAL STATE FOR ARMED ROBBERY, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J.CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below.
THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEAS ENTERED BY ALLEGED ACCOMPLICES DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND XIV; N.J.CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
DEFENDANT'S SENTENCE IS MANIFESTLY ...