On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-04-0370-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges A. A. Rodríguez, Collester and C.S. Fisher.
Tried to a jury, defendant Kevin J. Gilmore was convicted of first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count three). On May 13, 2005, Judge James C. Heimlich sentenced defendant to eleven and one-half years term of imprisonment with an eighty-five percent parole ineligibility pursuant to NERA to be served concurrently with a five-year sentence on another conviction.
During the early morning hours of November 10, 2002, Jan Sala, a gas station attendant, was in the middle of working his nightshift at the Citgo gas station on Edgar Road in Linden. At approximately 2:10 a.m. Sala was alone and sitting in the attendant booth when a black Pontiac Grand Am pulled up to the gas pump. After Sala opened the car's tank, the driver approached him with a "long knife," stating, "I'm an American guy, give me your money." Sala gave the man the $132 that was in his money pouch; the man quickly jumped into his car and sped away. Sala ran back to the attendant booth and called the police.
Sala testified that the assailant was a white male about twenty-five or thirty-years old and 5'8" tall. Sala said there was silver tape over the license plate, but he could make out the number 7. The car also had a black plastic sheet and silver tape over the right-side window. Sala further testified that during the incident he was "afraid for my life."
A similar robbery occurred the night before at the Raceway gas station on Route 9 south in Old Bridge. At the N.J.R.E. 404(b) pre-trial hearing in the instant case, Jaswinder Singh testified he was working the nightshift in the convenience store portion of the Raceway. At approximately 11:40 p.m., a white male in his early 20s wearing a hooded sweatshirt came into the store and asked for a carton of cigarettes. Singh turned around to reach the carton, and when he turned back, the man held out a ten- to twelve-inch knife and demanded money. Singh gave him the money from the register and then heard a car horn. He looked out the window and saw a woman sitting in a dark-colored, "older" car with duct tape on the windows. The man got in the car and sped away. At the hearing Singh was unable to identify defendant as the assailant.
Another similar robbery occurred on the same night as the Linden Citgo robbery. Ajit Singh began his nightshift on November 10, 2002, at 10:00 p.m. at the Sayreville Sunoco gas station. At the N.J.R.E. 404(b) evidentiary hearing Singh testified that at about 10:50 p.m. a black Pontiac with duct tape on the rear passenger-side window drove up to one of the pumps. As Singh started to open the gas tank, the man approached him with a fifteen-inch knife and demanded, "Give me the money, bastard." Singh started to slowly back away in order to alert his co-attendant who was in the restroom. The assailant kept repeating the demand for money, but when Singh started yelling the man ran to his car and drove off with a female in the passenger seat. Singh was able to see the license plate number as NV748S and gave it to the police. After being called to the East Brunswick police station the next morning, Singh identified the defendant as his assailant.
After considering all the testimony presented during the N.J.R.E. 404(b) evidentiary hearing, Judge Heimlich ruled that the testimony concerning the Sayreville Sunoco station robbery was admissible as other crimes evidence under the identification exception. However, he held that evidence of the Old Bridge Raceway station robbery was inadmissible because he found the State did not produce clear and convincing evidence that the assailant was the defendant.
During a pre-trial Miranda*fn1 hearing, East Brunswick Police Officer Craig Hoover testified that at about 4 a.m. on November 11, 2002, he stopped a black Pontiac with license plate number NV748S after receiving a report of the earlier robbery. Hoover saw the vehicle pulling into the driveway of defendant's mother's house. Defendant was driving the car and was alone at the time of the stop. He was placed in handcuffs and put in the back of the patrol car.
Hoover testified he then read defendant his Miranda rights, and the defendant acknowledged that he understood them. Hoover took defendant to East Brunswick police headquarters where once again he read defendant his Miranda rights and showed him a card with the rights written on it. Defendant signed the card, acknowledging its receipt. Hoover testified that defendant made certain inculpatory statements while waiting to be processed. He admitted that he had gone to the Sunoco station in Sayreville on the night of November 10, 2002, and that he had pulled a knife out of the car in order to "shake [the attendant] up."
Detective Kevin Zebro also testified at the Miranda hearing. He said he read the defendant his Miranda rights at about 5:15 a.m. on November 11, 2002, and defendant signed the form indicating he received his rights. The detective said defendant stated he was at the Sunoco station, but defendant then asked for an attorney, and the interview ceased.
After processing in East Brunswick, defendant was taken in the early morning hours of November 11, 2002 to the Sayreville police station. Sayreville Police Lieutenant John Zebrowski testified that he was made aware that the defendant had invoked his right to an attorney earlier that morning. However, later that morning defendant indicated he wanted to speak with the police. Lieutenant Zebrowski told him that the police would have to re-Mirandize him, and the defendant said he understood. Defendant was again advised of his Miranda rights, and he signed another card acknowledging the receipt of his rights. Defendant then gave a tape-recorded statement admitting to the Sayreville gas station robbery. Lieutenant Zebrowski testified that neither the defendant nor his family was threatened and that defendant was not coerced or forced to give a statement.
Defendant testified at the Miranda hearing that he was arrested outside his mother's home on the morning of November 11, 2002 and advised of his rights while waiting in the police car. However, he did not recall being re-advised of his rights at the East Brunswick police station. He testified that he asked for an attorney but that his request was ignored. He also denied making any inculpatory remarks or statements to Officer Hoover at the East Brunswick Police Department. He testified that the only reason he gave a statement to the Sayreville police was because they threatened to put his pregnant girlfriend in jail.
Judge Heimlich found the testimony of the police officers to be credible and found significant parts of defendant's testimony incredible and that defendant's statements were given freely and voluntarily after receipt of his Miranda warnings. He held that defendant's statement to the Sayreville police was inadmissible under N.J.R.E. 403 because the prejudice to defendant outweighed its probative value but that the State could produce proof of the Sayreville incident under the identification exception of N.J.R.E. 404(b).
Following defendant's conviction by jury verdict, Judge Heimlich merged counts two and three into count one and sentenced defendant to an eleven and one-half year term of imprisonment with an eighty-five percent NERA period of parole ineligibility to be served concurrently with the five-year term defendant received after having pled guilty to the Sayreville robbery.
On appeal defendant presents the following arguments:
POINT I - REFERENCE TO THE DEFENDANT INVOKING HIS RIGHT TO AN ATTORNEY WHICH OCCURRED DURING THE DIRECT TESTIMONY OF DETECTIVE ZEBRO VIOLATED THE DEFENDANT'S SIXTH AMENDMENT AND ...