On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-04-1276.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 16, 2008
Before Judges Cuff, Fisher and C.L. Miniman.
Following a jury trial, defendant David Mackoon was found guilty of three counts of second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Counts One, Seven and Sixteen); first degree robbery, N.J.S.A. 2C:15-1 (Count Seventeen); third degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (Count Eighteen); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Nineteen); and second degree tampering with a witness, N.J.S.A. 2C:28-5 (Count Twenty-one). On Count One, defendant was sentenced to a ten-year term of imprisonment subject to a NERA*fn1 85% parole ineligibility term. A similar term was imposed on Count Seven. After merging Counts Sixteen and Nineteen with Count Seventeen, the judge imposed a discretionary extended (persistent offender) thirty-year term of imprisonment subject to a NERA parole ineligibility term. On Count Eighteen, the judge imposed a discretionary extended term of five years with a two-year period of parole ineligibility; and on Count Twenty-one, defendant was sentenced to a ten-year term of imprisonment with a five-year period of parole ineligibility. All terms are to run concurrently. The aggregate term is thirty years with 85% parole ineligibility. The appropriate fines, penalties and assessments were imposed.
The charges against defendant arise from robberies of three jewelry stores in Bloomfield, East Orange and Orange between July 3, 2002 and October 29, 2003. The following evidence regarding each episode was produced at trial.
At 2:00 p.m. on July 3, 2002, three masked and armed men "stormed" into Goldenland Jewelry (Goldenland), located at 23 Broad Street, Bloomfield. One man ran toward Tony Istebryan, Goldenland's owner, the owner's father, and a female employee. This man held them at gunpoint in the corner of the store, saying "don't move." A second man, who stood behind the first, also pointed a handgun at Istebryan, his father, and the employee and stated "don't move." The third man smashed display cases and filled a large black garbage bag with jewelry.
The three men were not in Goldenland very long. The owner estimated the three men were in the store no more than forty-eight seconds. Nevertheless, they took an estimated $30,000 worth of jewelry from the store. Before running out of the store, the first man struck Istebryan in the right temple with the butt of a handgun. The three attackers ran out of the store and drove away in a Jaguar which had been double-parked on Broad Street.
Istebryan summoned the police, who arrived two minutes later. He described the three attackers and the get-away driver as black males. The incident was recorded on the store's surveillance camera.
The next incident occurred several months later. At approximately 10:30 a.m. on December 18, 2002, several men entered All Page Jewelry (All Page), located at 615 Central Avenue, East Orange. Mikail Alaskaykali and his co-worker, Bashar Korbeh, were in the back office of the store when they saw the door open on the store's closed-circuit television. Korbeh walked toward the front of the store. Alaskaykali followed him. Before reaching the front of the store, Alaskaykali saw Korbeh raise his hands and heard him say "okay, okay." Korbeh then told Alaskaykali to get down on the floor. Alaskaykali saw an armed and masked man, described by Alaskaykali as light skinned and between 5'4" and 5'5" tall. The armed man held Alaskaykali at gunpoint and told him to lay down on the floor. Alaskaykali then heard breaking glass in the front of the store and the armed man speaking to others in the front of the store.
Alaskaykali did not recall how long the attackers were in the store. After the attackers ran out of the store, Alaskaykali and Korbeh collected jewelry dropped by the fleeing gunmen, called All Page's owner, and summoned the police.
Alaskaykali estimated the gunmen took jewelry worth $20,000. The incident was recorded by a surveillance camera.
The next incident occurred ten months later. At 11:00 a.m. on October 29, 2003, three masked men entered Hot Stop jewelry store, located at 309 Main Street, Orange. Nabil Akary was assisting his co-worker when the first of three men entered the store and jumped behind a glass and metal showcase. Akary turned to apprehend the man when two armed men entered the store. When one of the assailants pushed him, Akary pretended to fall and triggered the alarm.
The men smashed two showcases and loaded jewelry into a cloth bag. At the time of the robbery, a female customer and four young boys were in the store. The intruders allowed the customer and the boys to leave. Akary estimates that a minute to a minute and a half elapsed during the robbery. After the men left, Akary ran outside. He observed the get-away car, which had been double-parked outside the store. Police arrived five to ten minutes later. The robbery was caught on surveillance camera.
None of the victims were able to identify any of their assailants. In support of its case, the State produced Derrick Knight, who testified that he was recruited by defendant to participate in each robbery. He testified that defendant recruited the participants in each robbery, defendant drove the get-away car in two of the three robberies, and defendant was the "lead man" in the second robbery. The "lead man," according to Knight, was the first man into the store who detained the employees and any customers. Knight also identified defendant from the surveillance film of the second robbery and confirmed that defendant had short arms.
Dr. Zafer Termanini, an orthopedic surgeon, also testified on behalf of the State. He testified that the person shown in the surveillance video of the second robbery had movements consistent with a person with a congenital condition of shortened upper limbs and limited use of the hands. He also examined defendant, confirmed that he suffered from this deformity, and that he had surgery to address the condition. He also testified that the movements of the lead man depicted in the surveillance video of the second robbery were consistent with the physical capabilities of a person with defendant's condition.
Defendant was arrested on April 10, 2004, as a result of a domestic violence report. Officers Rudolph Simmons and Dashawn Williams of the Orange Police Department responded to a domestic violence call involving a firearm. The officers reported to defendant's mother's home, where she pointed to defendant as he passed the house in a car. The officers followed defendant a short distance and stopped him, removed defendant and his passenger from the vehicle, and searched defendant and the interior of the vehicle for ...