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State v. Robertson

April 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH ROBERTSON, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-04-1512.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 18, 2009

Before Judges Lyons and Waugh.

Defendant Joseph Robertson appeals the dismissal of his petition for post conviction relief (PCR). We affirm.

I.

In April 2002, Robertson was convicted of conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; robbery, N.J.S.A. 2C:15-1; unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b); and possession of a weapon (handgun), for an unlawful purpose, N.J.S.A. 2C:39-4(a). After the conspiracy and robbery convictions were merged, he was sentenced to a twenty-year term of incarceration, which was subject the eighty-five percent parole disqualification of the No Early Release Act, N.J.S.A. 2C:43-7.2, to run consecutive to an unrelated custodial term he was already serving. Robertson received a concurrent five-year term for the unlawful possession of a weapon conviction and a concurrent ten-year term for the possession of a weapon for an unlawful purpose conviction.

Robertson appealed and we affirmed his conviction. However, we vacated the sentence on the conviction for possession of a weapon for an unlawful purpose. We remanded to the trial court for merger of that conviction with the robbery conviction and correction of the sentence with respect to fines and penalties. State v. Robertson, A-0523-02T4 (App. Div. Oct. 1, 2004). The Supreme Court denied certification. State v. Robertson, 183 N.J. 585 (2005).

In September 2006, Robertson filed his PCR petition pro se. He was subsequently assigned counsel, who filed a supplemental brief raising additional issues. At oral argument on July 20, 2007, both sides relied on their briefs. Judge Michael J. Nelson issued a written decision later that day, in which he denied post-conviction relief. This appeal followed.

II.

Briefly stated, the facts underlying Robertson's conviction are as follows. On December 26, 2000, between 9:15 and 9:30 a.m., Vann Hailey, who worked for the Elizabethtown Gas Company, drove his company vehicle to a delicatessen located at Evergreen and Thorne Streets in Newark for his morning break. When Hailey arrived, he noticed a white Lincoln parked in front of the store with two people in it. He entered the store and bought a snack and something to drink. When he left the store and began walking to his truck, a man came from behind him and told him to "give it up." Hailey did not initially know what that meant and turned around to look at the man; they were standing face-to-face, no more than a foot apart. Nothing was obstructing the man's face.

Hailey told the man that he wasn't going to give anything up. The man responded by pointing a gun to Hailey's left temple. Hailey then dropped what he was holding in his hand. He reached into his pocket and gave the man his wallet, which was black and contained his driver's license, work identification, and credit cards. It also contained approximately $100 in cash. After the man robbed Hailey, he ran down Thorne Street, toward Frelinghuysen Avenue.

During the entire time of the incident, the Lincoln remained parked in front of the store. Hailey noticed an African-American male with a dark complexion, in his twenties and wearing a dark top, in the Lincoln.

After the robbery, Hailey ran back to the store to tell the owner that he had just been robbed. The owner, Juan Marte, pressed a silent alarm so the police would come to the scene. After activating the alarm, ...


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