On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-12-4727.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Collester.
Defendant Charles Johnson appeals from his conviction for second-degree robbery, contrary to N.J.S.A. 2C:15-1. Following an evidentiary hearing on October 27, 2006 before Judge Louis F. Hornstine, the court denied defendant's motion to suppress physical and identification evidence. Thereafter on October 30, 2006, defendant entered a plea of guilty to second-degree robbery pursuant to a plea agreement for the State to recommend a sentence of nine years in prison, subject to the No Early Release Act (NERA). On December 13, 2006, Judge Hornstine sentenced defendant to an eight-year period of incarceration with the eighty-five percent parole bar in accordance with NERA in addition to mandatory fines and penalties.
The facts adduced from the suppression hearing are as follows. Shortly before 11 a.m. on June 18, 2005, the Bellmawr police were dispatched to the In-and-Out convenience store at 1177 West Browning Road after a hang-up call was placed to the 9-1-1 switchboard from a pay phone at the store. Corporal Parker of the Bellmawr Police Department was on patrol about a mile away from the location, and while en route he received further information from central dispatch that the call related to a strong-arm robbery.
When Parker arrived at the In-and-Out store, he located the victim, Dennis Symington, at the pay phone. Symington said that he had been robbed by a tall black man approximately 6'5" wearing a black hat, black shirt and blue jeans. The man asked Symington for the time, and as Symington raised his arm to look at his watch, the man knocked him to the ground and punched him demanding Symington give him money. The man removed $300 from Symington's front pocket and ran across the front of the store to jump into a black taxi which had been left running and was facing Kings Highway in the direction of Mount Ephraim. Symington's arm was bleeding, and he was treated at the scene. He refused transport to a hospital for additional treatment. He told the officers who responded that the $300 taken from him was in denominations of $20 bills as he had just cashed a winning lottery ticket at the store.
Corporal Parker spoke with Robert Moore and Justin Malunism who were witnesses to the robbery. They described the assailant as a black man about 6'5" tall, with a light beard and wearing a black shirt, black hat and blue jeans. They said that he drove away in a black Chevy Caprice taxicab toward Mount Ephraim. Moore wrote down the car's license plate on the back of a lottery ticket and gave the ticket to Corporal Parker. Moore added that he may have mixed a couple of the numbers on the license plate, but was able to see that it was a limousine plate and that the car had white lettering on the side.
Corporal Parker broadcast the information over the police radio. Officer Steven Burkhardt of the Gloucester City Police Department heard the radio transmission describing the suspect as a black male with a muscular build, approximately 6'5" tall, driving a black Caprice taxicab with registration number OL2-739F and cursive white lettering on the doors. The alert also indicated the direction in which the car was headed.
Officer Burkhardt parked his marked police car at the Morgan Boulevard overpass in case the vehicle might pass in that direction. About five minutes later he saw a black Mercury Grand Marquis taxicab come off the ramp of Route 676 north and stop at the red light on Morgan Boulevard. Officer Burkhardt knew that the Chevy Caprice and Mercury Grand Marquis were both full-sized, four-door cars that were similar in appearance. He pulled up behind the car and saw the license plate read OL3729F, the same registration that had been broadcast by the dispatcher except two numbers had been transposed. Burkhardt followed the taxicab for a few minutes and saw that it was operated by a black male. He was awaiting backup units to arrive before stopping the vehicle and mistook a Camden police car parked at the side of the road as part of the backup team.
Burkhardt then activated his lights and siren and signaled the taxicab to pull over. He stayed in his police car and ordered defendant out of the black car at gunpoint. The defendant first held his credentials out the driver's window and then put them on the front seat as he stepped out of the car. It was at that point that Burkhardt saw that defendant matched the physical description of the robbery suspect. He ordered defendant to lie down in the street and put his hands behind his back. Backup officers arrived shortly thereafter. Burkhardt handcuffed the defendant and formally placed him under arrest. Searching the defendant's pockets, Burkhardt found $300 in $20 bills.
Meanwhile, the backup officers approached the car and discovered Patricia Gaughan in the front passenger seat. She was removed from the car and taken into custody. At that point Burkhardt returned to the car to check for weapons and contraband. He observed and recovered the registration and insurance card from the front driver's seat. The car was then impounded and towed to the police station. It was discovered that the vehicle was registered to James Vivalo, owner of Taxi and Limousine One, LLC, located in Metuchen. Corporal Parker called the number on the side of the car and spoke to Vivalo. When Parker asked Vivalo who was in possession of the car, Vivalo responded, "a big black guy named Charlie," but did not know defendant's last name. Vivalo then said he would provide the necessary records when he arrived to get the car released.
Corporal Parker then photographed the car exterior for evidentiary and identification purposes. While he was standing outside the car, he saw a black hat on the front seat and a dark colored sweatshirt in the back seat. Parker entered the car and took the clothing into custody.
Prior to that time, Corporal Parker had brought Symington to the Bellmawr police station, and told him that "there was somebody I wanted him to take a look at." Inside police headquarters Symington saw the defendant in handcuffs being taken out of the back of Patrolman Burkhardt's police car. ...