On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 06-01-0001.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 3, 2008
Before Judges Carchman and R.B. Coleman.
Following a jury trial, defendant Darius Wilson was convicted of first-degree robbery, N.J.S.A. 2C:15-1; and second- degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). Additional charges included in the indictment were dismissed at trial -third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; fourth-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). After a merger of the aggravated assault charge into the robbery charge, the trial judge sentenced defendant to a prison term of fifteen years subject to serving 85% without parole under the No Early Release Act, N.J.S.A. 2C:43-7.2.
These are the facts that were adduced at trial. On September 23, 2005, at approximately 11:30 a.m., 95 year old Joshua Hogate, was eating a sandwich at the McDonald's Restaurant on East Broadway in Salem, New Jersey. After finishing his sandwich, he walked to the rest room and began to use the urinal. While standing at the urinal, Hogate was struck on the side of the face by another man, later identified as defendant, who had entered the bathroom behind him. Defendant then pushed Hogate into the corner while throwing the victim's hand in the air and pushing up against him. Defendant then "ripped Hogate's pocket off" and took his wallet containing "at least 100 bucks," a Visa card, a Sears Roebuck card and various medical cards. During the struggle, Hogate yelled that he was "being robbed." Seconds later, defendant exited the bathroom and ran out the side door of the restaurant. Hogate claimed he only saw the "back of defendant's neck and the side of his neck." Hogate was never able to make a positive identification of the assailant.
As a result of the incident, Hogate sustained a lacerated hand, loose teeth, a cracked cheek bone and a fractured jaw which was broken in three places. Hogate also began having vision difficulties in one of his eyes as a result of the initial blow.
Herbert Sharp, who was eating in the McDonald's during the incident, explained he heard "an older gentleman holler that he had been robbed" and saw "an older gentleman" and "someone walking out the door in front of him." Sharp did not get a look at the person who got away, but saw that he had a white t-shirt on, was a "pretty good-sized fellow" and was black.
The manager of the McDonald's at the time, Harvey Melton, was not present during the incident but noted that the McDonald's had a "state of the art security" system with "maybe nine, ten security cameras." Melton was able to obtain a copy of the security footage from the day in question and took it over to the police station in Salem.
Two McDonald's workers, Yolanda Taylor and Alnisha Lewis, identified defendant as the man who was riding his bicycle outside of the restaurant on the morning of the incident. Both Taylor and Lewis stated they knew defendant before the incident.*fn1
Lewis, who was working the drive-thru at the time, explained she knew defendant "from the streets" and that "he was just hanging out at the phone booth, then he was on the phone -- on the phone. Then he just kept circling around the building on the bike." Lewis also said she thought defendant had on "a white T and some jeans." Taylor claims to have seen defendant riding his bike outside but did not notice what he was wearing at the time. Neither worker saw or heard anything of the incident and only became aware of the event when Hogate came to the counter injured. Taylor, who was working in the front of the restaurant at the time of the incident, said she never saw defendant inside the restaurant that day.
Salem Police Sergeant Melvin Vanaman responded to the call and arrived at the McDonald's at approximately 12:30 p.m. Upon arriving, Vanaman saw Hogate with some swelling and bleeding on the right side of his face and a "tear to the skin on his...left forearm, which he was bleeding from." Vanaman also spoke with Taylor, Lewis and Sharp at the restaurant before making his report. From these descriptions, Vanaman concluded that defendant was a possible suspect.
Four days later, on September 27, 2005, Parole Officers Michelle Russomano and Robert Wartenburg, went to defendant's house dressed in "plain clothes" to "bring him down to Salem Police Department for some questioning." When defendant answered the door and saw Russomano and Wartenburg, a Salem Police car drove by. Defendant "became frantic." Wartenburg asked defendant to step outside, but he refused. After defendant "acted a little aggressive," Wartenburg grabbed defendant's hand and a "scuffle occurred." During the scuffle defendant began "wrestling" with Wartenburg, and defendant kicked the door which hit Russomano in the shoulder and head. Russomano asserts that Wartenburg said "you're under arrest" to ...