On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-02-0254-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Newman and Ashrafi.
Defendant Spaggery Maurice, misnamed in the caption as Maurice Spaggery, appeals his conviction after trial by jury on all four counts of an indictment charging armed robbery, firearms offenses, and hindering prosecution. He challenges the jury charge, the competence of his trial attorney, the prosecutor's summation, and his sentence. We affirm.
On September 5, 2004, at approximately 1:40 p.m., Elizabeth Nwanonyiri drove to the Fleet Bank on Chancellor Avenue in Irvington to withdraw cash for grocery shopping. She stopped at the bank's drive-up ATM and inserted her bank card into the machine. In her rear view mirror, she saw an African-American man step out of the passenger side of the only other car she saw in the parking lot.
Nwanonyiri entered her PIN number on the ATM machine and requested a $40 withdrawal. After she retrieved her receipt and ATM card from the machine, she suddenly saw the man standing at the side of her car between the ATM machine and her. The man asked, "What are you getting?" Nwanonyiri asked him what he wanted, at which point he produced a "black pistol" and pointed it at her. Nwanonyiri then said, "You can have it," and drove off quickly without attempting to get her money.
At trial, Nwanonyiri described the man as "a tall male, black", "between five eight, eleven feet and also medium weight. I should say about 160 to 180 pounds." She also testified that she only looked at him for a "split second" because her "focus was on the gun." Nwanonyiri stated that she "didn't get to look at him per se" and was not able to identify facial features.
She said the robber was "this shadow in front of me." When she drove away, she did not look back and did not see what happened to the man or her money. The prosecutor did not ask Nwanonyiri to identify defendant in court.
After the robbery, Nwanonyiri was afraid and confused and drove in the direction of her home. Along the way, she saw a police vehicle and pulled over. She told the officers that she had been robbed at the Chancellor Avenue Fleet Bank by a black man with a gun. She also told them that there was someone else with the man in a parked car. After speaking briefly to the officers, Nwanonyiri ran back to her car and went home crying. The police did not interview her until three months later.
Shortly after Nwanonyiri reported the robbery, still before 2:00 p.m., Officer Larkin Combs of the Hillside Police Department received a radio transmission instructing him to be on the lookout for a specific vehicle. A short time later, Officer Combs saw a gold Infiniti coming out of a Burger King drive-through approximately one mile from the Fleet Bank. He saw two men in the car. Officer Combs followed the vehicle as he called for backup. Officer Eduardo Teixeira arrived within a few minutes and, at that point, Officer Combs activated his lights and stopped the Infiniti.
Both officers approached and ordered the occupants of the car to step out. Officer Combs recognized the driver of the vehicle as Brandon Leath, whom he knew from previous arrests. Defendant was sitting in the passenger seat. As he stepped out, defendant said to Officer Teixeira that he had a gun in his pocket. Officer Teixeira immediately placed defendant under arrest, handcuffed him, and removed a loaded gun from his right pocket. Subsequent investigation revealed that defendant did not have a permit to purchase or carry a firearm. When tested, the police found the handgun to be operable. The gun, however, was mostly silver, not black.
At the site of arrest, defendant was patted down, and the officers recovered a black ski mask and $29 from his pockets.
The arrest report listed defendant's weight as 260 pounds. When arrested, defendant falsely identified himself as Philip Brown.
The next day, September 6, 2004, the police interviewed defendant after reading his Miranda rights to him. Defendant signed a form acknowledging that he heard and understood those rights. He then gave a four-page statement in which he confessed that he approached a woman at the ATM machine, asked for her money, and then took $40 from the ATM machine.
Defendant testified at trial. He denied that he had robbed Nwanonyiri or that he had been present at the location of the ATM machine. He testified that he had been sleeping in his home until about 1:00 that day when Leath picked him up. He rode with Leath to drop off Leath's girlfriend, and then they went directly to the Burger King. He said that he gave false information in his September 6, 2004, confession because the officers "told me that they would deport me. They told me to tell them about what they wanted to hear. . . . I didn't even know I was being charged with robbery." He said the gun belonged to another person and he had it with him that afternoon because he intended to return it to the owner. Defendant also testified that he gave the arresting officers a false name because he wanted to avoid being arrested.
Before trial, defense counsel filed a motion to suppress defendant's confession. The trial court held a hearing and denied the motion.
After two days of trial in April 2006, defendant was convicted on all counts of the indictment: first degree armed robbery, contrary to N.J.S.A. 2C:15-1; second degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a); third degree unlawful possession of a firearm, contrary to N.J.S.A. 2C:39-5(b); and third degree hindering prosecution, contrary to N.J.S.A. 2C:29-3(b)(4).
At sentencing, the judge merged count two, possession of a firearm for an unlawful purpose, into count one, armed robbery, and sentenced defendant to eighteen years imprisonment, with an eighty-five percent period of parole ineligibility and five years of parole supervision, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was also sentenced to two concurrent five-year terms on counts three and four, those terms also to run concurrently with the sentence on the robbery conviction. The sentencing court ordered ...