On appeal from Superior Court of New Jersey, Law Division, Essex County, No. I-96-07-2385.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Yannotti.
Following an eight-day trial, a jury convicted defendant in 1998 of conspiracy to commit robbery, a crime of the second degree, N.J.S.A. 2C:5-2; two counts of robbery while armed, a crime of the first degree, N.J.S.A. 2C:15-1; one count of aggravated assault involving serious bodily injury, a crime of the second degree, N.J.S.A. 2C:12-1(b)(1); two counts of possession of a weapon for an unlawful purpose, a crime of the second degree, N.J.S.A. 2C:39-4(a); and two counts of unlawful possession of a weapon, a crime of the third degree, N.J.S.A. 2C:39-5(b). It found defendant not guilty of one count of aggravated assault.
Defendant absconded prior to sentencing and was not apprehended until 2003 and sentenced in 2004. The trial court merged the convictions for conspiracy, aggravated assault and possession of a weapon for an unlawful purpose into the robbery convictions and imposed two concurrent sixteen-year terms for the two robbery convictions, each with a six-year period of parole ineligibility. It also sentenced defendant to two five-year terms for unlawful possession of a weapon, one consecutive to the robbery sentence and one concurrent. The aggregate term was thus sixteen years in prison, with a six-year period of parole ineligibility. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.
Defendant's convictions rest upon an incident which occurred on February 15, 1996, at a pharmacy located at 278 Park Avenue in Newark. Two men were working at the pharmacy just after it opened, Theophilus Olaokpo, the pharmacist in charge, and Raphael Nwankwo, who owned the business. Three men entered the pharmacy and headed toward the prescription area; two were carrying guns and the third a bag, presumably to carry the robbery proceeds. Nwankwo testified that one of the men put a gun to his head and demanded that he open the safe. When Nwankwo said he had no money, the man punched him. Nwankwo offered the cash in the register but the man declined, insisting on the safe. Olaokpo also offered the men the money in the cash register and his wallet but the men continued to insist they wanted the safe. Olaokpo managed to hit the alarm button under the cash register. Ordinarily a silent alarm, it sounded in the store and the men ran out. Before leaving, one turned and fired his gun at Nwankwo. The bullet struck Nwankwo in the penis.
Witnesses told the police that they saw an older model black or brown Cadillac leaving the scene of the robbery. Police investigation led them to the owner of the car, Grant Fluker, Jr. Fluker, who originally faced the same charges as did defendant, testified at defendant's trial pursuant to a plea bargain he had negotiated. He said that three men came to his apartment that morning, wanting to borrow his car. Fluker said he refused their request until one of the three produced a gun and insisted that Fluker drive them. He agreed to do so. Fluker said he drove to the scene and remained in the car until the three men returned. One of them gave him twenty dollars. Fluker identified the three men as Leslie Duncan, Norris Williams and defendant. As did Fluker, co-defendant Duncan also negotiated a plea bargain and testified at defendant's trial.
Detective George Mendez of the Newark Police Department interviewed defendant on March 26, 1996, after advising him of his Miranda rights and defendant signing a written waiver. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Defendant told Detective Mendez that Williams had told him that the pharmacy kept "one hundred grand" in a safe; defendant and Williams met up with Duncan, who told them he could secure a car. Defendant said they persuaded this fourth person to come along by putting a gun to his head. Defendant said they took money from the cash register and fled when the alarm went off. He told Detective Mendez that his gun accidentally discharged as he hit a shelf while he was running from the store.
Defendant raises the following issues on appeal.
DEFENDANT'S STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE THE POLICE DID NOT SCRUPULOUSLY HONOR HIS RIGHT TO REMAIN SILENT.
THE DEFENDANT'S RIGHTS UNDER THE CONFRONTATION CLAUSE WERE VIOLATED BY THE ADMISSION OF A POLICE OFFICER'S HEARSAY TESTIMONY THAT HE HAD ARRESTED DEFENDANT AFTER RECEIVING INFORMATION FROM AN OUTSIDE LAW ENFORCEMENT AGENCY. (Not Raised Below)
THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEA ENTERED BY THE CO-DEFENDANT DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below)
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY FAILING TO INSTRUCT THE JURY THAT AN ACCOMPLICE MAY INTEND TO COMMIT A LOWER-DEGREE OFFENSE THAN THE MAIN ACTOR. (Not Raised Below)
THE COURT ABUSED ITS DISCRETION IN IMPOSING SIXTEEN-YEAR TERMS ON THE ROBBERIES AND FIVE-YEAR TERMS ON THE WEAPONS OFFENSES. POINT SIX THE IMPOSITION OF CONSECUTIVE SENTENCES FOR DEFENDANT'S ROBBERY AND UNLAWFUL POSSESSION OF A WEAPONS CONVICTION IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).
IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005). (Not Raised Below)
The trial court conducted a pre-trial hearing to determine whether the statement defendant gave to Detective Mendez would be admissible at his trial. This hearing spanned several days and included testimony from several witnesses, including defendant.
The first witness at the Miranda hearing was Detective Mendez. Mendez said he first knew of defendant's involvement in the robbery through Fluker. He did not question defendant, however, until March 26, 1996, when he received a telephone call from Lieutenant Zeiser, a member of an FBI task force.*fn1 Zeiser told Mendez that defendant was being held at the Newark headquarters of the FBI and that Mendez could come there to question him. Zeiser also told Mendez that a confidential informant had provided information to the FBI about defendant's involvement in this robbery. Mendez did not inquire why the task force was holding defendant.
Mendez went to FBI headquarters to question defendant. Zeiser was present, as was Police Officer Michael Gillens. Mendez testified that before he asked any questions of defendant, he told defendant that he was a suspect in the pharmacy robbery. He informed defendant of his Miranda rights, both verbally and in writing. Defendant acknowledged he understood those rights and signed a card waiving them. Lt. Zeiser witnessed the written waiver. Mendez testified that defendant did not appear to be impaired in any way and understood his rights. Mendez said defendant never gave any indication that he wanted to stop answering questions or that he wanted an attorney to be present. Nor did defendant give any indication to Mendez that he had consulted with an attorney about this matter before Mendez questioned him. Mendez testified that he asked defendant whether he wanted an attorney but did not ask him whether he already had an attorney. Mendez was not aware at the time of this questioning that defendant had been indicted for another robbery under the name Ben Watkins. He also said he never threatened defendant.
After defendant executed the written waiver of rights, Mendez proceeded to question him. Mendez typed defendant's response to his questions. This interrogation lasted fifty-seven minutes. We have earlier in this opinion summarized the essence of defendant's statement to Detective Mendez.
Defendant's version of what occurred at FBI headquarters on March 26 differed significantly from the testimony of Mendez and Zeiser. Defendant said he was arrested that day by the FBI for outstanding parole violations. He said that when he was arrested, he was told that Fluker had already inculpated him in the pharmacy robbery. He said that he was placed in a room and handcuffed to a chair and that Zeiser never left the room. He maintained that a number of officers came in and out of the room, asking him about the Park Avenue robbery and who was his attorney in the Ben Watkins matter. Defendant said that his response was that he did not want to make any statement and wanted to see his attorney. He said that Lt. Zeiser told him he should cooperate and that if he could turn in someone with guns, he would be back on the street. He also said that an individual identified only as "Malik" told him the same thing.
Defendant said he was threatened during this process and was scared. He said he was told that if he did not cooperate he would get a long sentence, including time in federal prison. He said that although he had been questioned before, he had never been badgered in such a manner. He testified ...