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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Wefing and Parker.
Tried to a jury, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). At sentencing, the trial court merged the latter conviction into the former and because this was defendant's second Graves Act offense, sentenced defendant to forty years in prison. The trial court directed that defendant serve 85% of that term before being considered eligible for parole. N.J.S.A. 2C:43-7.2. Further, it directed that defendant serve this sentence consecutive to a sentence imposed upon him in Ocean County. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
From testimony presented at the trial, the jury could have found the following facts. On the evening of September 23, 2003, Jessica Smith was at the back counter of Katsin's Pharmacy in Red Bank. As she was preparing to close out her register, she was approached by a man wearing a hat and sunglasses who asked if she had anything for a bad hip. She helped the man, whom she later identified as defendant, find several items. Two other employees were in the store, Alicia Morris who was working at the front counter, and Brian Pucci, who was in the office, as well as several customers. Defendant approached Smith's rear register, and as Smith began to ring up his purchases, defendant pulled out a gun and told her to open the register. At that point two other men entered the store; one remained at the front counter with Morris while the other went to the rear to help defendant. The man who remained in the front wore a ski mask which looked as if the holes had been enlarged from their original size.
Smith had trouble opening the cash drawer and Pucci came to help her. He opened the drawer, which contained approximately $100; the robbers took the money. They then had Pucci and Smith empty their pockets. Defendant was agitated at how little money they had gotten and took Pucci into the store's rear office, insisting he come up with more money. He saw Smith's purse in the office and took her wallet. He then struck Pucci in the back of the head with his gun and Pucci began to struggle with him. The other man entered the office and punched Pucci. After beating Pucci, the two men fled out the rear door.
The third robber had remained standing at the front counter with Morris. His mask slipped and she recognized him as Larry Gibbs.*fn1 She told Gibbs both that she was going to tell her father and that his confederates had left. He ran out the front door.
Pucci, Morris and Smith ran out the back door of the pharmacy and saw the three robbers getting into a dark blue, boxy, cargo-style minivan. The three returned to the pharmacy, locked the back door and called 9-1-1.
The police responded promptly. Pucci was taken to the hospital for treatment of the injuries he had received in his altercation with defendant and the other robber.
Detective Robert Clayton of the Red Bank Police Department was the lead detective on the case. In conjunction with his investigation, he took the items that defendant had left on the counter when he took out the gun. He also took photographs of the scene, including the rear office, where Pucci's blood was visible on the floor.
Pucci, Smith and Morris each gave statements. In her statement, Morris said she had recognized co-defendant Gibbs because she had babysat for his son.*fn2 The police prepared three photo arrays, each of which contained defendant's picture, although in a different position. When an array was displayed to Smith, she selected defendant's picture; she said she was "99%" sure he was the robber. When Morris and Pucci were each independently shown a photo array, they each selected the same picture, but it was not of defendant.
John Samsel was a pharmacy employee who was not working the day of the robbery. When he reported for work the following day, he set about cleaning up the disarray he found. While doing so, he found a pair of sunglasses in the rear office where Pucci had struggled with his assailant. When Samsel learned that they did not belong to any of the store's employees, he turned them over to the police.
Three days after the robbery, maintenance staff at Lakewood Two Apartments noted a wallet in a storm drain. They retrieved it and learned it belonged to Smith. They contacted Smith who in turn contacted the police who arranged to pick it up. The spot where Smith's wallet was found was less than one-half mile from defendant's residence.
Approximately a week and a half later the police executed a search warrant for defendant's residence and van. Clayton testified that the van, which had been rented by defendant's fiancée, matched the description of the van used by the robbers. From the van's interior the police recovered a blue ski mask and a letter written by co-defendant Gibbs to a prospective employer that was dated September 23, 2003, the date of the robbery. In ...