On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-10-1134.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2009
Before Judges Rodríguez and Waugh.
Defendant Hector Royal appeals from his conviction on a six-count indictment stemming from a January 18, 2002, armed robbery, as well as the resulting aggregate sentence of thirty years incarceration, which was subject to an eight-five percent parole ineligibility period. We affirm.
We discern the following facts from the record. On Friday, January 18, 2002, Royal, David McKnight, Cornelius "Bunny" McKnight, and Omar Jones met in Orange. They drove in David's car to Linden. When they arrived in Linden, Bunny, Royal, and Jones got out of David's car, but David remained in the car. The three men walked through a fence to the back of the Maxim Quality Foods' warehouse and put on masks and gloves.
At approximately 2 a.m., Diego Perdomo exited the warehouse to turn off the motor for one of the warehouse's freezers. Jones and the others observed Perdomo come out of the warehouse. Perdomo testified that three masked individuals approached him. The three men were carrying "revolvers" and "pistols." Perdomo could see the men's necks and believed that all three individuals were African American. According to Perdomo, the three men threw him to the ground and put duct tape around his wrists and over his mouth. They placed a ski mask over his head and, placing the barrel of a gun against his head, threatened to kill him if he yelled or said anything.
Jones, who pled guilty and testified for the State at Royal's trial, maintained that he was not present when contact was first made with Perdomo. He stated that he, Royal, and Bunny split up after they saw Perdomo exit the warehouse and that when he next came in contact with them, someone had already duct-tapped Perdomo's wrists and mouth.
According to Perdomo, the three men questioned him about how many individuals were inside the warehouse and whether the doors were locked. He responded that he did not speak English. Jones, Royal, and Bunny forced Perdomo to knock on the door of the warehouse to gain entry to the building.
Jones stated that initially he stayed outside the warehouse while Royal and Bunny went in with Perdomo. Perdomo said that once inside, he was taken to a freezer along with other employees. Some of the employees were told to strip to their underwear before being held inside a large freezer. Jones testified that after being outside for three to five minutes, either Royal or Bunny let him into the warehouse. Jones stood guard over the employees in the freezer.
Calvin Lassiter worked in poultry refrigeration at the warehouse. He left the poultry room to go out into the main warehouse to retrieve some wooden pallets. Lassiter was backing up a forklift when he "felt a sharp object go into [his] back." Lassiter could not tell the person's race, but said he was at least six feet tall. The masked man again pushed a sharp object into Lassiter's back and told him to get off the forklift. The masked individual asked Lassiter how many other people were working in the warehouse; he replied eight to ten. Lassiter was taken to the freezer being guarded by Jones.
Tony Clark worked as a data entry clerk at Maxim. She worked in an office closed off from the main warehouse. She testified that drivers who were out late would deposit the cash they collected in a safe in her office. She had arrived at work between midnight and one a.m. on January 18, 2002. After her arrival, two masked men entered the office. Clark was certain that one man was carrying two weapons, but she did not see whether the second man was armed. She observed that one man "was a light skinned, almost black or Spanish guy, [with] braids."
Jim Costanza, who did not testify at trial, was in the office with Clark.*fn1 They both got down when ordered to do so by the masked men. The men broke down the door to a locked office and removed a safe from underneath the desk. Costanza and Clark were then moved by the masked men to the freezer guarded by Jones. There were already other Maxim employees in the freezer when Clark and Costanza arrived. She testified that these employees were in their underwear.
Robert McCarthy, the night supervisor at Maxim, arrived at work around 2 a.m. Approximately five to ten minutes later he entered the warehouse. McCarthy observed several of the employees laying face down on the floor of the warehouse and a man holding a gun standing over them. McCarthy considered running, but instead laid down next to the other employees. Eventually the men were moved to the freezer. The gunman took McCarthy's money and cell phone and "told [him] to strip." McCarthy observed that the gunman had dark skin and was shorter than his six feet two inches.
Devon Hardy had been working with Lassiter and Raymond Davis in the chicken room. After Lassiter and Davis left the chicken room to retrieve more pallets, Hardy saw a masked man, about thirty feet away, pointing a gun at him. As the man started to approach, Hardy put his head down and looked at the ground holding his hands out. Hardy noticed that the masked man was "light skinned," but not "Caucasian." The gunman patted Hardy down and took approximately $55.00 from him. The man asked Hardy: "Where is everybody else at?" Hardy responded that he did not know and that he was not sure if anyone else was coming in that night. Hardy was taken to the freezer where he saw McCarthy, Clark, Lassiter, and Davis. Hardy testified that there was a second armed individual guarding the freezer door.
Approximately five minutes after Hardy's arrival at the freezer, one of the gunman returned and ordered Costanza and Hardy to pick up a large safe and load it onto a dolly. Hardy and Costanza were unsuccessful in their first attempt to get the safe on the dolly. The gunman became agitated with the men and said: "If you drop the safe again I'm going to shoot you." Jones testified that Royal and Bunny ordered two employees to push two safes on a dolly towards a back door. Hardy testified that the back door of the warehouse was open and that a car had been backed up to the door.
At some point, Clark initiated a conversation with Jones who she testified was holding what appeared to be a "sawed off shotgun." Clark informed Jones that she was cold and he told her to stand by him close to the door where it was not as cold. Eventually, the employees were moved to a second freezer that was warmer. Hardy testified that he saw the employees being moved between freezers while he and Costanza were loading the safe onto the dolly. Hardy was sent to the second freezer after he had lifted the safe onto the dolly, however Costanza remained out in the warehouse with the gunmen.
Robert Williams was a supervisor at Maxim. On January 18, 2002, he arrived at work around 3 a.m. Williams entered the warehouse through the front office. He became suspicious when he saw the cash registers in the office open and none of the nighttime employees present. Williams looked through a small window into the warehouse and did not see any employees. He returned to his car, drove across the street, and called 9-1-1.
Jones was instructed by either Royal or Bunny to help get the two safes outside.*fn2 Jones put down the weapon he was holding and helped transport the safes. David had returned with his car and they were trying to carry the safes out of the building and into his car. The safes were too heavy to lift so Jones and David pushed the dolly out the back door towards David's car.
Jones and David were able to get one safe into the trunk of the car. As they were loading the second safe into the backseat of the car, the police arrived. Linden Police Officers Scott Salerno and Joseph Birch approached the back of the warehouse and observed two men loading a safe into the back seat of a Mazda. Salerno and Birch drew their weapons and told the individuals to stop what they were doing; David complied and Jones fled on foot. Jones ran across the parking lot, jumped over a fence, and ran into the woods. Linden Police Officer Don Geisheimer pursued Jones on foot and apprehended him shortly thereafter.
After apprehending Jones, Geisheimer returned to the warehouse and found two guns in the front office; one was a Ruger semi-automatic handgun and the other was a Tec-9 type weapon.
Detective Robert Osada arrived at Maxim at approximately 5 a.m. He found a camouflage duffle bag near the rear of the building. Inside the duffle bag was a stun gun, duct tap, a bandana, and $102. A Smith and Wesson .32 caliber handgun with two rounds was also found inside the duffle bag.
A Mazda 626, with Florida registration was impounded at the scene of the robbery. Osada found fifteen areas on the Mazda from which fingerprints could be lifted. He sent the fingerprints to the New Jersey State Police for possible suspect identification. Only finger prints belonging to Bunny were identified.
Jones did not initially cooperate with the police. He provided the police with a statement on January 18, 2002, but testified at trial that he provided false information in his first statement. He was shown a photo array by Detective Andrew Spano on January 19, 2002. Jones selected Royal's picture from the photo array and wrote on the back: "I'm 90 percent sure that this is the guy that road with [Bunny] and I to Linden." He then signed and dated the back of the photo.
Royal was arrested pursuant to a warrant on February 1, 2002. Royal was transported to the Linden Police Station where he was questioned by Spano. Spano advised Royal of his Miranda*fn3
rights, which Royal waived on a written form. Spano told Royal that he believed he was involved in the robbery of Maxim foods; Royal responded with "prove it." Royal was shown a photograph of Jones. Royal said that he had never seen Jones before. Spano told Royal that the police had prints and Royal responded, "you ain't got my prints." Spano told Royal the prints were not from the building but were from a vehicle and Royal's "demeanor changed" from aggressive to passive. Royal then asked Spano, "you mean the Mazda?" Spano testified that he had not told Royal what type of car the prints had been removed from. Royal told Spano that he could not remember where he was the night of January 17 into the morning of January 18, 2002.
During trial, Jones testified for the State. The prosecution raised the issue of his plea agreement. Jones testified that he had been facing charges of robbery, burglary, weapons possession, and resisting arrest, and that he pled guilty to the charges of robbery and resisting arrest by flight. The plea agreement called for Jones to be sentenced to twelve years with eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, conditioned on Jones providing truthful testimony against his co-defendants. Jones understood that he would be sentenced last, but, in fact, he was sentenced first, on May 6, 2005, to a ten-year imprisonment term with eighty-five percent parole ineligibility pursuant to NERA. When asked why he was testifying, Jones responded: "Number one, it was a condition of my plea."
On May 31, 2005, Royal was convicted of three counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one, two, and three); second-degree burglary, N.J.S.A. 2C:18-1 (count five); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven).*fn4
On September 29, 2005, defense counsel requested an adjournment of Royal's sentencing because an issue had arisen regarding the impartiality of a juror. The State consented to the adjournment.
On September 13, 2005, Royal's mother, Marlene Velazquez-Royal, submitted a letter to the court stating that she had worked with a woman on the jury, Juror No. 6, at Muhlenberg Hospital in Plainfield. She stated that she and the woman did not get along. Royal's cousin, Alflesia Williams, also submitted a letter stating that Marlene had introduced her to the juror at Walmart and that the juror had asked about Royal.
On October 14, 2005, Royal moved for a new trial on the grounds of "juror misconduct and/or newly discovered evidence," relying on the failure of the juror to disclose that she knew Royal and his mother.
The trial judge met with Juror No. 6 on November 14, 2005. Although he apparently questioned the juror under oath, there was no record of the interview, at least none was supplied to us, and counsel were not present.
Royal was sentenced on November 18, 2005. Prior to sentencing, the trial judge denied the motion for a new trial. The trial judge also denied the State's request for an extended term. He merged counts five and six into count one. Royal was sentenced to a seventeen-year term of imprisonment with eighty-five percent NERA parole ineligibility for count one; a consecutive thirteen-year term of imprisonment subject to NERA for count two; a concurrent twelve-year term ...