On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-11-2416-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester and Grall.
Tried to a jury, defendant Alphonzo Edwards was convicted of first-degree armed robbery, contrary to N.J.S.A. 2C:15-1, and unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-4(d). Following defendant's conviction, the State filed a motion to sentence defendant to a life term without parole pursuant to N.J.S.A. 2C:43-7.1. On June 20, 2007, the court granted the motion and imposed a sentence upon defendant of life without parole following merger of the weapons charge with the first-degree robbery.
On appeal defendant makes the following arguments:
POINT I - THE PROSECUTOR COMMITTED MISCONDUCT AND REDUCED THE STATE'S BURDEN OF PROOF IN HIS SUMMATION WHEN HE PROVIDED AN INACCURATE DEFINITION WHILE DISCUSSING THE INTOXICATION DEFENSE. (Not Raised Below.)
POINT II - THE JUDGE'S CHARGE REGARDING THE LESSER-INCLUDED THEFT OFFENSE IMPROPERLY SUGGESTED THAT SUCH AN OFFENSE WAS NOT OF EQUAL WEIGHT TO OFFENSES CHARGED IN THE INDICTMENT, AND MAY HAVE LED JURORS TO REJECT THE LESSER-INCLUDED OFFENSE. (Not Raised Below.)
The State's proofs against defendant at trial were overwhelming. On September 3, 2005, at about 8:30 p.m. a man entered the discount liquor store in Neptune Township wearing a mask and baseball cap and his right hand covered. He pointed his right hand at Jo George, an employee, and told him to open the register. After George opened and closed the register, the man pulled the register off the counter and slammed it to the floor, causing the cash drawer to open. As he did so, the object he was holding in his right hand fell to the floor. It was a knife with a five-inch blade.
The store manager walked to the front of the store and was alerted by the sound of the cash register falling to the floor. He saw the masked man and then hit the panic button under the counter to notify the police. The manager and Pablo DeJesus, another employee, wrestled with the man and pulled off the hat and mask revealing the man's face. The robber fled, dropping cash taken from the register as he ran toward a bicycle. DeJesus pulled the man to the ground, and money scattered everywhere. The robber swung the knife at DeJesus, jumped a fence and escaped into a wooded area. When the police responded, they were advised of a surveillance tape that recorded the incident. They also collected the mask and hat worn by the robber.
Kathleen Matovsky lived directly across the street from the liquor store. On the date and time of the robbery she heard a commotion across the street. At 3 a.m. she awoke and let her dogs out in her yard. When they returned, one of the dogs dropped a billfold at her feet. The billfold contained defendant's social security card, picture identification, birth certificate as well as a pawn slip and medical form bearing defendant's name. Ms. Matovsky turned over the billfold and loose cash found in her backyard to the police.
Based upon the identifying documents found in the Matovskys' yard and the surveillance video from the store, the police constructed a photo array. DeJesus viewed the array and immediately identified the defendant. On December 9, 2005, defendant was located and arrested at a crack house. Abrasions on his knees, shin, back and shoulder were consistent with the altercation following the robbery. Months later, on March 23, 2006, authorities obtained a buccal swab from defendant for DNA analysis. At trial the State police forensic scientist analyzed the DNA profiles lifted from the ski mask and baseball cap and compared them to the control DNA sample from the buccal swab. The DNA on the hat and mask matched defendant's DNA sample. Finally, the jury was shown the video from the liquor store which reflected three separate angles of surveillance from which still pictures were made that depicted defendant.
The defense was voluntary intoxication. Defendant testified that he grew up in Alabama and began drinking "moonshine" when he was only ten or eleven years old. Within four or five years he became a blackout drinker, and at times the blackouts would last days. He testified that he stopped drinking moonshine when he moved to New Jersey but became addicted to beer and committed crimes as a result. When he was last released from prison, he began using cocaine in addition to drinking alcohol. He said on September 1, 2005, two days before the robbery, he spent his entire paycheck on cocaine, vodka, beer and cigarettes. He said that after drinking the vodka and using the cocaine, he had a blackout that lasted five days. He remembered nothing during that time.
The defense of voluntary intoxication is presented when the defendant's faculties are so prostrated at the time of the offense that he is incapable of acting knowingly or purposely. State v. Cameron, 104 N.J. 42, 54 (1986). Defendant's first argument on appeal is that the prosecutor misstated the law in summation and lowered the State's burden of proof by giving an incorrect ...