On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-11-2449.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Yannotti.
Defendant Larry Gibbs appeals from a judgment of conviction entered on October 10, 2006 after a jury found him guilty of first degree armed robbery, N.J.S.A. 2C:15-1; and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4a. He was sentenced to an aggregate term of sixteen years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
These charges arose out of a robbery that occurred on September 23, 2003 in Red Bank. Co-defendant James Williams went into Katsin's Pharmacy wearing a hat and sunglasses. Williams approached an employee, Jessica Smith, and the owner/pharmacist, Brian Pucci, and asked for information about certain products. While Smith was assisting Williams, defendant and another unidentified individual, both wearing ski masks, entered the store. Defendant remained near the front door and locked it. In the meantime, Williams pointed a gun at Smith and demanded she open the cash register.
While Williams searched Smith's and Pucci's pockets, taking their wallets, Pucci opened the register and gave Williams $100 in cash. Williams demanded to know where any other money was located and when Pucci said there wasn't any other money, Williams hit him with the butt end of the gun. Pucci grabbed the gun and the two struggled for the weapon while the other unidentified individual punched Pucci in the head.
Defendant had stayed by the front door and another employee, Alicia Morris, recognized him from his voice and his eyes through the mask because she had been a babysitter for his son. Morris said she was going to call her father and defendant said she wasn't going to call anybody. Defendant called to Williams and the unidentified individual that the police were coming, and the two fled through the back door while defendant went out the front door of the pharmacy. Pucci, Smith and Morris ran out the back door and saw one of the suspects get into a blue van and drive away.
When the police arrived at the scene, Smith gave a description of Williams and identified his photo from an array of six shown to her one-by-one. The next day, the store manager found a pair of sunglasses in the store that did not belong to any of the employees. They were turned over to the police and DNA testing showed that Williams' DNA was on the sunglasses.
On September 26, 2003, the manager of Lakewood Plaza Two Apartments, Zebony Dorsey, found a wallet in a storm drain in the apartment complex. The wallet was turned over to the police and identified as Smith's.
On September 27, 2003, Pucci was shown a photo array and selected a photo, noting that the eyes were the same as Williams', but he did not identify that individual as Williams.
On October 8, 2003, a search warrant was executed for Williams' residence and van. The dark blue van matching the description provided by Smith, Pucci and Morris was parked in the driveway. A letter with defendant's name was found in the van, along with a dark blue ski mask. DNA testing on the ski mask did not rule out defendant. Police also found a .45 caliber handgun, six bullets and a pellet gun in the apartment.
In this appeal, defendant ...