On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-10-0690.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2009
Before Judges Winkelstein and Fuentes.
Defendant Eric Sherman was tried before a jury and convicted of second-degree robbery, N.J.S.A. 2C:15-1; third-degree residential burglary, N.J.S.A. 2C:18-2; third-degree criminal attempt to commit theft by unlawful taking, N.J.S.A. 2C:20-3a; and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a. The same jury acquitted defendant of third-degree terroristic threats, N.J.S.A. 2C:12-3a, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.
The trial court sentenced defendant to an aggregate extended term of twelve years. In accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the court ordered that defendant serve eighty-five percent of his twelve-year sentence without parole eligibility, and imposed a three-year period of parole supervision to commence immediately upon his release.
These are the relevant facts derived from the evidence presented at trial.
On December 10, 2003, Danuta Wiaktor left her home located in the Township of Lawrenceville to help serve Christmas dinners at the Princeton Senior Center. She drove directly home when the dinner ended around 5:30 p.m. When she arrived at her home, she decided to leave her car in the driveway, as opposed to parking it inside the garage, because she intended to go to the store later that evening.
Wiaktor locked her car and went inside the house. As soon as she entered, she heard her dog barking from the kitchen area where the animal was confined. When she went to the kitchen to investigate, Wiaktor noticed the curtain moving from the breeze coming through the open window. Being the month of December, she specifically remembered that she had not left the kitchen window open. At this point, a feeling that something was "terribly wrong" came over her. She gave the following description of what transpired next.
So right away I try to run through the door, through the front door. However, I didn't manage to escape or to leave the house because I saw, when I reached the family room, like two-third I saw on the staircase, almost at the end, [a] black male coming down dressing in like very dark clothes.
His face was covered with some kind of woolen scarf, and I was so shocked I couldn't believe what I see. [sic]
Under his right arm he had a new handbag that I just purchased because I was preparing for vacation. In the left hand he - no, in the left hand he had the handbag and in the right hand he had a huge screwdriver. So, I looked at him, he looked at me, and he said, give me your fucking money because I kill you. Well, I didn't have any money. So, I look at the guy, and I said to him that I don't have any money, but I can drive you to the nearest ATM because I live in the area that lots of banks are close by.
At this point, the intruder looked at a set of keys hanging at the door, and asked Wiaktor: "Where is [sic] your fucking keys?" Since the man was looking directly at the house keys hanging on the door, Wiaktor surmised that he wanted her car keys. As she ran to the nearby table to retrieve the keys, the man grabbed a number of items Wiaktor kept in the house, including a dish containing loose change and a number of handbags. He then snatched the car keys from Wiaktor's hands and drove off in her car, taking with him keys for the backdoor, car, and garage.
Wiaktor's description of her assailant to the police included that man's race, complexion, approximate age, and the clothing he wore. She also told the responding officers that she could identify him if she saw him again. She gave the police a list of the items taken, including a rosary. A forensic examination of the home revealed that the assailant was injured in the course of ransacking the ...