On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-05-803.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2009
Before Judges R. B. Coleman and Simonelli.
Tried before a jury in June 2007, defendant John Farkas was found guilty of first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); third-degree possession of a weapon (knife or machete) for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree possession of a weapon (knife or machete) for an inappropriate purpose, N.J.S.A. 2C:39-5d; and third-degree terroristic threat, N.J.S.A. 2C:12-3a. The court merged all of the lesser convictions into the conviction for first-degree armed robbery. Defendant had three prior convictions that qualified him for an extended sentence. Hence, the court imposed an extended term of twenty-five years, within the statutory range of twenty years to life imprisonment, pursuant to N.J.S.A. 2C:43-7a(2). That sentence is subject to a mandatory eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following arguments for our consideration:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENSE COUNSEL FAILED TO FILE A MOTION FOR A WADE OR SUPPRESSION HEARING OR SUBSTANTIVELY ARGUE FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE (NOT RAISED BELOW).
A. DEFENSE COUNSEL FAILED TO FILE A MOTION TO SUPPRESS THE EVIDENCE.
B. COUNSEL FAILED TO PURSUE A WADE HEARING.
C. DEFENSE COUNSEL FAILED TO ARGUE HIS PRO FORMA JUDGMENT OF ACQUITTAL.
D. THE AGGREGATE OF DEFENSE COUNSEL'S ERRORS DENIED FARKAS A FAIR TRIAL.
THE JURY INSTRUCTIONS WERE FATALLY FLAWED BECAUSE THEY CONFUSED AND MISSTATED OR OMITTED THE APPLICABLE LAW IN THIS CASE (NOT RAISED BELOW).
A. THE ATTEMPTED AGGRAVATED ASSAULT WITH A DEADLY WEAPON.
B. THE IDENTIFICATION INSTRUCTION.
FARKAS WAS SENTENCED TO A MANIFESTLY EXCESSIVE EXTENDED TERM OF TWENTY-FIVE YEARS WITH AN EIGHTY-FIVE PERCENT PAROLE BAR UNDER NERA. THE SENTENCE MUST BE VACATED.
After carefully reviewing defendant's arguments in light of the facts and applicable law, we affirm. Our affirmance is without prejudice to defendant's right to proceed by petition for post-conviction relief (PCR).
This matter arose out of a January, 10, 2006 robbery of a liquor store in Union City. At around 4:00 p.m., Arvind Patel was working alone when the suspect entered the liquor store wearing a mask, armed with a machete, and demanding cash. The robber took an unknown sum of money, placed it in a shoulder bag and left the store without causing injury. Before he left the store, the man removed his mask and looked back, which allowed Patel to see his face.
Patel went outside screaming for help and running after the man, towards 22nd Street. On 22nd Street, a bystander started running with Patel. The suspect made a left turn on Kerrigan Avenue and then a right turn on 21st Street. At that point, another bystander joined the chase. The suspect ran through a parking lot near a Hollywood Video that has access to Kennedy Boulevard. He then ran through the driveway of a funeral home. Patel did not follow the suspect. Instead, thinking that the suspect was running towards 20th Street, Patel went to 20th Street.
According to Patel, the suspect went across the funeral home's parking lot, where he lost a boot, and to a connected parking lot behind a building at 1916 Kennedy Boulevard. Patel testified that the suspect ran across some bushes, after which Patel does not know where he went. Patel ran to the front of the building and stood at the corner of 20th Street and Kennedy Boulevard, where he was joined by a bystander who called the police.
Peter Fernandez testified that he heard the owner of the liquor store yelling that he had been mugged or assaulted, and he "saw a guy running in front of the store owner." Fernandez started following the man, lost sight of him for approximately "five, eight, ten minutes," and saw him again at the parking lot exit on 20th Street when Fernandez observed him fall. At that point, Fernandez saw a machete inside the suspect's bag and took possession of it. He also observed the suspect lose a work boot and run towards "the other parking lot" and jump a fence. At that point, Fernandez lost sight of him and did not see him again.
According to Fernandez, the suspect was wearing a brown jacket and "a big type of shoe, yellowish in color." He did not know the color of the pants. Fernandez joined Patel on the corner of 20th Street waiting for the police. He had the machete and the boot, which he gave to the police when they arrived. Ibid. According to Fernandez, the police went inside the building for about thirty to forty minutes, and he recognized defendant when the police brought him out in handcuffs. He described defendant as wearing a white t-shirt ...