On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 05-06-00810.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2008
Before Judges Lisa and Alvarez.
Defendant, Djavon Holland, was found guilty by a jury of second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count one), and second-degree robbery, N.J.S.A. 2C:15-1 (count two). Following appropriate merger of the conspiracy offense into the substantive crime, defendant was sentenced to eight years of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and ordered to pay $425 in restitution to the victim as well as fines and penalties. Defendant appeals, and we affirm.
At trial, Edward Gold testified that at approximately 5:30 a.m. on January 13, 2005, he and his wife stopped at the Molly Pitcher Service Area on the New Jersey Turnpike while traveling south to Florida. Gold went inside the building to use the restroom, which was empty when he entered. Upon exiting the stall, he noticed two men watching him. One was tall and positioned by the exit, and the other was noticeably shorter and standing much closer to Gold. Gold washed his hands at the sink and moved toward the doorway, when the man behind him grabbed him by the neck. He was punched in the head and ribs repeatedly and felt hands going into his pockets.
Ariosto Pauta, a maintenance worker, entered the restroom because he heard shouting and yelled at the men to stop. He described the men as tall, ages twenty to twenty-five, and wearing hoods over their heads and handkerchiefs over their faces. He saw one of them pull a wallet out of Gold's pocket. Pauta reached for his broomstick and, after helping Gold up from the floor, they chased the men as they ran towards the parking lot. Hearing the outcry, a truck driver, Ron Bodo, ran out of the building with Gold towards the parking area. One of the assailants was already in a car, and the other was getting in, when Gold and Bodo reached them.
Bodo read the license plate number to Gold as the car pulled away, and they went to a pay phone to call 911. Gold stood next to Bodo while he made the call. He recited the license plate number to Bodo, who in turn repeated it to the 911 operator. The call, which lasted approximately four minutes, was played to the jury in its entirety.
Gold's injuries included aches and pains in his ribs, a bruised forehead, a swollen right index finger, and a punctured gum. His sons, both of whom were physicians, told him that he probably had a cracked rib. Gold, who was seventy-seven at the time, also experienced nightmares for a few months following the incident. His left pants pocket was torn, and his wallet was gone. Neither the credit cards nor the approximately $300 in cash contained in his wallet, nor the wallet itself, were ever recovered.
Jason S. Burns, one of the responding State troopers, testified that he put out a "be on the lookout" (BOLO) message for the get-away car, a 1992 Toyota Camry, after interviewing Gold and Bodo at the service area. At around 7:20 a.m., while still at the scene, Burns received a phone call from Bodo. As a result of the conversation,*fn1 Burns asked the Moorestown station to check if any of their troopers had stopped the Camry.
Shawn Kulik, another State trooper on duty that morning, testified that shortly after 7:00 a.m., he observed a maroon 1993 Toyota Camry heading southbound on the Turnpike, failing to maintain its lane. At the time, Kulik was not aware of the BOLO or the robbery.
When he stopped the vehicle due to the erratic driving, co-defendant Shaundell P. Martin was driving. He told Kulik that he did not have a driver's license with him, but did have one issued in Alabama. The front seat passenger, co-defendant John W. Sumner, Jr., was the Camry's registered owner. Sumner was wearing a hooded sweatshirt and had not been wearing his seatbelt. The front seat occupants were ordered out of the car. The entire stop, which was videotaped, lasted approximately forty-five minutes. The videotape was played to the jury in its entirety.
Kulik explained that he was able to get a good look at the passenger sitting in the rear seat of the vehicle, the only other occupant besides Sumner and Martin, and described him in detail. In court, Kulik identified defendant as the rear seat passenger. He issued a ticket to Martin for driving without a license, and Sumner drove the car away after the stop. Kulik did not learn until approximately an hour later that the Camry was wanted in connection with a robbery.
Detective Kenneth Koenig testified that on the morning of the robbery, he attempted to match the plate number that Bodo had provided, but was unsuccessful. He then conducted a "computer-aided dispatch search" and discovered that Kulik had just stopped and released the wanted vehicle.
Koenig watched the tape of the motor vehicle stop with Kulik, who identified the occupants who were removed from the Camry as co-defendants Sumner and Martin. Koenig obtained arrest warrants for them on February 8, 2005. Sumner was picked up that day in Maryland; Martin was picked up two days later in New York City. After Koenig's separate interviews with the co-defendants, he obtained a warrant for defendant's arrest.
Both co-defendants testified for the State. Sumner identified defendant in court as the person with him on the morning of the robbery. He said that the three men stopped at the service area to get gas, and that although defendant had told him that he needed money, he did not say anything about a robbery. When he and defendant went into the restroom, they saw Gold exit a stall and begin washing his hands. Defendant grabbed Gold from behind and, as the victim struggled, patted down his pockets. Sumner claimed that he grabbed Gold's hands so that the victim would not "do anything to get himself injured."
When Sumner and defendant fled, Martin was waiting behind the wheel. Sumner got into the front passenger seat, and defendant got into the rear. Martin drove off "pretty fast" and headed south on the Turnpike. Sumner also testified that he did not even know that defendant took Gold's wallet until they stopped later to repair a flat tire. No one talked about the robbery, but at some point, defendant threw "a credit card or something" out of the window of the moving vehicle.
Shortly after they left the Molly Pitcher Service Area, they stopped at another service area to eat and, in the process of parking, slashed a tire on a curb. Sumner said that defendant did not give him money from the robbery, but did pay to replace the tire.
In his statement to police, Sumner referred to defendant as "Dante," which Sumner explained is another named used by defendant in addition to "Kevin." He said that he and defendant ...