On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-04-0858.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Fuentes and Chambers.
Defendant Daniel Twian Brown was tried before a jury and convicted of multiple counts of first-degree armed robbery, theft, unlawful possession of a firearm, and possession of a firearm by a convicted felon. Defendant and his cohorts committed these crimes over a five-day period, commencing on December 28, 2004, and ending on January 1, 2005, the day of his arrest. These crimes were committed in separate locations, and implicated several victims.
A Bergen County grand jury indicted defendant on forty separate counts of criminal activity, more particularly described as follows: Count one, third-degree theft, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:20-3; Count two, first-degree robbery, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1; Count three, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count four, third-degree unlawful possession of a loaded rifle or shotgun, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 20:39-5(c)(2);*fn1 Count eight, second-degree robbery, contrary to N.J.S.A. 2C:2-6, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1; Count nine, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count ten, third-degree unlawful possession of a loaded rifle or shotgun, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5(c)(2); Count eleven, second-degree burglary, contrary to N.J.S.A. 2C:18-2; Count twelve, first-degree robbery, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1; Count thirteen, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count fourteen, third-degree unlawful possession of a loaded rifle or shotgun, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5(c)(2); Count fifteen, third-degree theft, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:20-3; Count sixteen, third-degree theft, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:20-3; Count seventeen, first-degree robbery, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1; Count eighteen, third-degree aggravated assault, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:12-1(b)(2); Count nineteen, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count twenty, third-degree unlawful possession of a loaded rifle or shotgun, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5(c)(2); Count twenty-one, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count twenty-two, third-degree possession of a handgun without a permit, contrary to N.J.S.A. 2C:2-6, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4;*fn2 Count twenty-four, first-degree robbery, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1; Count twenty-five, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count twenty-six, third-degree unlawful possession of a loaded rifle or shotgun, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5(c)(2); Count twenty-seven, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count twenty-eight, third-degree possession of a handgun without a permit, contrary to N.J.S.A. 2C:2-6, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4; Count twenty-nine, second-degree robbery, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1; Count thirty, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count thirty-one, third-degree unlawful possession of a loaded rifle or shotgun, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5(c)(2); Count thirty-two, second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a); Count thirty-three, third-degree possession of a handgun without a permit, contrary to N.J.S.A. 2C:2-6, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4; Count thirty-four, second-degree eluding, contrary to N.J.S.A. 2C:29-2(b); Count thirty-five, fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a)(2); Count thirty-six, fourth-degree resisting arrest, contrary to N.J.S.A. 20:29-2 (a)(2);*fn3 Count thirty-nine, second-degree unlawful possession of a weapon (a rifle) by a person convicted of an enumerated offense, contrary to N.J.S.A. 2C:39-7(b); and Count forty, second-degree unlawful possession of a weapon (a handgun) by a person convicted of an enumerated offense, contrary to N.J.S.A. 2C:39-7(b).
At sentencing, the court granted the State's motions to impose consecutive sentences as to certain offenses, and for a discretionary extended term. The court thus sentenced defendant to an aggregate sentence of life imprisonment, with 93 years, 8 months and 106 days of parole ineligibility.
After reviewing the record before us, and in light of prevailing legal standards, we reverse defendant's conviction on the charges related to unlawful possession of a rifle (Counts four, ten, fourteen, twenty, twenty-six, thirty-one and thirty-nine). There is no evidence that Brown or his co-defendants possessed a rifle during the commission of the crimes. We thus remand for re-sentencing based on the vacation of these convictions. We also vacate the sentence imposed on two convictions for second-degree robbery because: (1) the length of these sentences exceeded the range permitted under N.J.S.A. 2C:43-6(a)(2); and (2) the sentencing judge failed to make adequate findings in support of the aggravating, mitigating and Yarbough*fn4 factors. We affirm the remaining convictions.
In the interest of clarity, we will recite the relevant facts by identifying the events in chronological order.
A. The Gas Station Robbery in Lodi
The following account of events is based primarily on the testimony of Julio Ortiz. In the early morning hours of December 29, 2004, Ortiz was working as a gas station attendant at a BP gas station on Route 46 in Lodi. At about 4:35 a.m. he was inside the attendant's booth when he noticed a car with more than one person in it, parked across the street from the gas station. There was no one else around the gas station at the time. Ortiz described the car as a silver, four-door, Dodge Neon, or possibly Ford Escort; it had no front license plate.
From Ortiz's perspective, the occupants of the car "watched" him for a about fifteen minutes; the car then drove into the gas station and stopped twelve to fifteen feet away from gas pump number one, the pump farthest from Ortiz.
Although the lighting conditions did not permit him to see their faces, Ortiz saw two persons seated in the front of the car, and one in the rear seat; all three occupants were male and African American.
When one of the men in the car told Ortiz to "come here," he responded by motioning to the driver to move the car forward to pump five. The car did not move. As he stepped out of the attendant's booth, Ortiz saw that the three occupants wore bandannas that covered their faces from the top of their noses down. As Ortiz walked toward the car, the man seated in the back of the car said: "come here, bitch, give us the money." According to Ortiz, "they" had a gun that "looked like an Uzi."
Fearing for his life, Ortiz ran behind a gas pump. As he looked back, Ortiz saw that the occupants had not left the car; Ortiz then turned and ran toward the gas station's convenience store and called the police. The car sped away without further incident. When the police arrived soon thereafter, Ortiz described the assailants as three men who wore "black hats, jackets, and... black bandanna[s] covering their faces." The gas station's security camera did not record the event.
B. The Gas Station Robbery in River Edge
The following account of events is based primarily on the testimony of Abdelhaki Dlaymi. In the early morning hours of December 29, 2004, Dlaymi was working as a gas station attendant at a BP gas station located between Hackensack Avenue and Main Street in River Edge. Between 4:00 and 5:00 a.m. Dlaymi saw a man walk from the back of the gas station towards him. Dlaymi described the man as dressed all in black, wearing a military jacket and gloves, and except for the eyes, his face was completely covered.
When Dlaymi asked the man if he could be of assistance, he did not respond, continuing to walk towards him with one hand behind his back. At this point, Dlaymi saw another person walking towards him, similarly dressed in an all black, military-style jacket. Dlaymi could not see this person's face. Fearing that he was about to be robbed, Dlaymi turned and ran towards the street, eventually stopping a motorist who called the police. Dlaymi reported to the police that the only item missing from his attendant's booth was his personal cellular phone.
Detective Kurt Wilhelm of the River Edge Police Department returned to the scene later that day. Upon further investigation, Wilhelm saw footprints in the snow that led to the back of the gas station. The Bergen County Sheriff's Department determined that the footprints were made by Adidas or Nike sneakers and by Timberland boots. The parking lot for Eden Furniture is located about 200 yards behind the gas station property, in the direction of the footprints. The parking lot was monitored by a motion-activated camera.
At 5:25 a.m. the camera recorded a vehicle pulling into the parking lot with its lights off. It was dark outside at the time. Seven minutes later, at 5:32 a.m., the camera recorded three people running from the area behind the gas station to the car. The recording was of low quality and did not show any details of the runners' features. With respect to the car, the recording showed only a four-door vehicle that appeared light in color. At 5:42 a.m. the camera recorded a police car entering the parking lot.
C. The Gas Station Robbery in Englewood
The following account of events is based primarily on the testimony of Kevin Uyar. On December 29, 2004, Uyar was working as a gas station attendant at the Mobil station located in Englewood. He reported to work that day at 5:00 a.m. Between 5:50 and 6:00 a.m. a car pulled up next to a gas pump. As he walked out from the store of the gas station, Uyar saw three men inside the car: one in the driver's seat, one in the passenger's seat and one in the rear.
The man in the rear seat came out of the car, pointed a black handgun at Uyar, and said "yo, I rob you." The man in the passenger's seat got out of the car, took $500 that Uyar had in his pocket and said: "I want more." When Uyar said that he did not have any more money, the robbers went back inside the car and drove off. Immediately after the robbers drove off, Uyar cried for a "couple of seconds," called the police, and wrote the license plate number of his assailants' car on the counter of the gas station's store.
Detective Peter Schwartz of the Englewood Police Department responded to the call. Based on the license plate number provided by Uyar, Schwartz ascertained that the car was a Ford Escort, registered to Fairmont Truck Rentals in Hackensack. When Fairmont Truck Rentals confirmed that the vehicle had been stolen, Schwartz broadcast the license plate number over the State Police Emergency Network (SPEN).
D. The Easy Shop Robbery in Garfield
The following account of events is based primarily on the testimony of Muzafar Ali, Sanela Malicevic and Joseph Sodora.
Easy Shop is a convenience store owned by Muzafar Ali, located in Garfield. On December 30, 2004, between 11:10 and 11:20 p.m., Ali was alone in the back room of the store, preparing to close for the day. Sanela Malicevic and her husband, who lived nearby, were walking past the store, on their way home from dinner.
At this point, Malicevic saw five men "huddled together," next to two cars that were parked in a lot next to the shop. One man wore a red-striped gray hoodie sweatshirt; a second man, who was tall and husky, wore a knee-length black down coat; she could not describe the other three men; she also could not identify the race of any of the men. Because these men made her uncomfortable and nervous, Malicevic decided to hold her cellular phone in her hand as she and her husband walked past them.
At this point, Malicevic heard the man dressed in the hoodie say: "let's go," as he pulled the hood over his head; a second man put on a mask that covered his face. As she dialed 9-1-1 on her cell phone, Malicevic heard Ali yelling: "don't do this... don't shoot me," followed by a gunshot. As she ran away from the store, Malicevic turned back and saw Ali also running; she then heard three more gunshots.
According to Ali, he was working in the back room of the store when he heard someone enter through the front door. As he walked toward the counter located next to the door, three men wearing masks were already in the store. He did not remember what type of clothing they wore. The only thing Ali could say definitively was that the man who pointed a silver gun at him was tall.
The men told Ali to "get down"; he told them to take whatever they wanted. Two of the men stood in front of Ali, and a third man stood behind him. Using the gun, "they" hit him in the front and back of his head. Ali fell to the floor and heard a gunshot. He quickly rose up and ran out of the store, turning left onto MacArthur Avenue. Ali heard more gun shots as he ran.
Ali heard another gun shot when he reached the driveway of a house that sat across the street from the shop. He jumped onto the deck of the house and heard yet another gunshot. All of the bullets "just missed" him. Ali eventually called 9-1-1 from his cellular phone. Ali was transported to Hackensack Hospital where he received nine staples to seal a laceration in the front of his head, and twenty-seven staples for an injury to the back of his head.
Joseph Sodora lived near the Easy Shop at the time of this incident. He was in his house when he first heard a loud bang.
He initially dismissed it as children playing. About a minute later, he heard two more bangs; he walked outside to see two cars "taking off down Passaic Street, one in each direction." One car was dark red; the other was dark blue or black. He also saw a "goldish-color Nissan" driving directly towards him with its car lights turned off; he could not see the occupants in any of the cars.*fn5
At about 4:00 a.m. on December 31, 2004, Sergeant Edward Dolack of the Garfield Police Department interviewed Ali in the emergency room of Hackensack Hospital. Although in pain and "incoherent," Ali gave Dolack the following description of his assailants: "three males, one black, one white, the other unknown. All wearing dark ski masks, hats, gray bulky jackets. Heights approximately five foot eight inches." Ali testified that the men stole $200 from the Easy Shop.
E. The Catering Truck Robbery in Teterboro
The following account of events is based primarily on the testimony of John Toronto. Toronto owned and operated a food catering truck. This is the type of rolling short-order food establishment ordinarily found at industrial parks, or near high school and university campuses. Toronto was seventy-years old at the time of this incident.
On December 31, 2004, at around 4:00 a.m., Toronto was parked in Lavalli's Food's parking lot. When the last customers left, a car entered the parking lot, drove away from Toronto's truck, then drove back towards the truck and stopped. Three African American men*fn6, wearing "winter clothes" and ski masks, jumped out of the car. One of the men wore glasses under his ski mask. Toronto described that man as "heavy," about six feet, and one to two inches tall. Two of the men had guns.
The men pointed their guns at Toronto and demanded that he give them his money. They held him against the side of the truck, pushing a gun against his ribs. Toronto took $150 out of his pocket and gave it to them; he also gave them some cigarettes, his cellular telephone, and a coin dispenser that he wore around his waist. The men then pushed Toronto into the truck and drove off. Toronto had to wait for someone with a telephone to arrive in order to call the police.
Officer Samuel Aguilar of the Little Ferry Police Department and three other officers responded to the scene. Toronto described what had happened to him; as to the car the men were driving, although not certain, Toronto thought the car was a tan colored older model Chevy.
Lavalli's Food had a video surveillance camera that recorded the events in the parking lot. Other than generally showing what had taken place, the video provided little detail on the assailants' appearances other than to show that one of them wore a white coat.
F. The Gas Station Robbery in Hackensack
The following account of events is based primarily on the testimony of Baytekin Marasli. On December 31, 2004, between 4:20 and 4:30 a.m., Marasli was working as a gas station attendant at a BP station on Route 17 in Hackensack. While talking on the phone inside the attendant's booth with the door locked, Marasli heard a noise coming from the door. When he turned to see who it was, Marasli saw a man "squatting and trying to open the door." Marasli was able to see the side of the man's face, whom he described as "a black man" dressed in black; he did not wear anything to cover his face; he had no facial hair, appeared to be between twenty-five and thirty-years-old.
The man ran off, and Marasli called the police. Marasli also saw another person running in the same direction, dressed in black. The police broadcasted the attempted robbery over the SPEN. Officer James Prise of the Hackensack Police Department was on patrol in a marked vehicle when he heard the broadcast. He turned onto Summit Avenue South and saw "a vehicle that was two, maybe three cars back from a traffic light." The car seemed to match the description of the light-colored, possibly tan, car that Prise had heard earlier that morning over the SPEN regarding an armed robbery in Little Ferry.
As the car, a Nissan, passed on his left, Prise saw that three or four "black males" were inside "possibly wearing some type of wool hats." Prise made a K-turn to follow the car. As he was turning, the car moved "onto the wrong side of the roadway heading northbound and then it made a left onto the ramp for 17 north." Prise activated his lights and siren and followed the car onto the Route 17 north ramp.
The car eventually left the highway and drove into a Home Depot parking lot. Prise saw the license plate number and reported it. He continued to follow the car north through the Home Depot parking lot, towards Essex Street, which runs east to west. As he and the Nissan approached Essex Street, Prise saw a Hackensack police car driven by Officer Niles Malvasia, traveling west on Essex Street towards them. The Nissan nearly collided with Malvasia's patrol car, and Prise had to lock his breaks to avoid a collision.
The Nissan continued north, crossing over Essex Street, onto private property. Prise followed it across the back of Jack's Car Wash and into a "construction yard." At this point, Prise saw what looked like a silver revolver being tossed from the car; the car then stopped. Prise stopped his vehicle about two-and-a-half car lengths behind the Nissan. He opened his door, drew his weapon, and crouched behind his door.
All doors, except the front passenger's door, were opened; all four occupants exited the car (one from each rear door and two from the driver's side door). The occupants then ran north along the railroad tracks. Although the lighting in the area was poor, Prise "immediately" recognized that the last man who crawled out of the car was Kenyatta Clarke. Prise described Clarke as "a black male, maybe [in his] mid-twenties"; he was about six feet three or four inches tall and weighed between 280 and 300 pounds. Prise had also seen him wear glasses in the past. Malvasia corroborated Prise's description of Clarke's physical features.
Prise followed Clarke along the railroad tracks until Clarke got tangled in the vegetation and fell to the ground. Prise arrested him without resistance. Clarke was wearing a black jacket, a red wool hat with the eyes cut out, a do-rag on his head, and a pair of gloves that had a rubber coating on the palms. He had $203 in his pocket.
Malvasia took custody of Clarke while Prise continued to run north along the railroad tracks after the other suspects. This proved fruitless. However, Prise found a "black BDU-style jacket" during the chase, that was near an apartment building along the railroad tracks. Inside the Nissan, police found cartons of cigarettes, a coin dispenser that Toronto identified at trial as the one he was wearing at the time of the robbery, a black.22-caliber pistol (found on the driver's side floor), and a blue or black bandanna. The car looked as if it had been stolen, with the steering column "punched out."
On the ground near the Nissan, police found a silver 357 Magnum revolver. It had three live and three spent rounds in its cylinder. Charles Mason of the Bergen County Sheriff's Department testified that based on his examination, both weapons were operational. Neither weapon was tested for fingerprints.*fn7
On December 30, 2004, Fairmont Car and Truck Rental reported to the police the theft of a Ford Escort. The police recovered the car on Berry Street in Hackensack; it had a broken window and the ignition had been tampered with.
In late December 2004, Jacqueline Kero reported that her 1995 Audi had been stolen from a repair shop. The car was an odd color that Kero described as "[k]ind of purplish brownish." Garnto testified that a Nissan and an Audi were used in the Easy Shop robbery in Ridgefield Park.
Tosh Tatezawa, the General Manager of JTB USA Incorporated (JTB), located in Hasbrouck Heights, testified that in late December 2004, his company reported that a four-door silver 2000 Nissan had been stolen from JTB's lot. This same vehicle was the one involved in the chase with Officer Prise. The police did not find any fingerprints inside the Nissan.
Based on the statements given by Kenyatta Clarke, the police arrested three other individuals who participated and otherwise carried out the crimes. These individuals also gave incriminating statements to the police, including naming defendant as one of the participants. In fact, it is undisputed that all four of the men arrested implicated defendant in these crimes.
Based on these statements, Hackensack police officers arrested defendant on January 1, 2005. The arrest was not uneventful. Armed with a sworn complaint, the police responded to the apartment of a woman believed to be defendant's girlfriend. Immediately after the arresting officers knocked on the front door of the apartment, they heard a "crash" sound. The sound was caused by defendant crashing through a back window of the apartment, onto the roof of an adjacent building occupied by McManus Tool Rental. This building's roof top is approximately fifteen feet lower than the window of defendant's girlfriend's apartment. After a tense, twenty-minute standoff, defendant surrendered to the police.
While in custody, and after waiving his rights under Miranda,*fn8 defendant gave an incriminating statement concerning his involvement in the various crimes. Specifically, defendant admitted to stealing the Nissan and Audi and to committing the December 30, 2004, armed robberies of the Easy Shop in Garfield and the BP gas station in Hackensack.
Defendant admitted that between 9:30 and 10:00 p.m. on December 30, 2004, he went to an "office building across from the Sheraton Hotel" on the "borderline of Hackensack and Hasbrouck" and stole a four-door car that was an "off-color," possibly tan, by breaking the window and "snatch[ing] out the ignition" with a dent puller. He was accompanied by three men whom he knew as Kenny (Kenyatta Clarke), Junior and Jermaine. Kenny was "the guy you [police] caught." Junior was "some dude from the block" who was "black... short and stocky." Jermaine who lived on Lawrence Street in Hackensack, was tall and "brown-skinned." Defendant indicated that, at the time he committed these crimes, he wore "jeans, [a] black shirt, maybe blue, knit hat, [and] blue Adidas sneakers." Kenny wore "dark clothing," and Junior wore "blue jeans."
Defendant said that he drove to "some car lot on the border of Garfield and Passaic along the river." He had stolen an Audi the same way that he stole the other car. He "put New York plates on it and drove off." One of the other three men drove the other car. They then switched cars; he drove the Hackensack-Hasbrouck car, with Junior as a passenger; Jermaine drove the Audi with Kenny as a passenger.
The four men went to a convenience store in Garfield. Defendant was armed with a "22 long, 10-shot clip, black handgun." Kenny had a "357 revolver, six shots, chrome." When asked what they did at the store, defendant gave the following response:
Go in the convenience store on Passaic Street and go up in the store, caught the man up in the back, told him don't move, where's the money at. The man tried to get away. He broke free. I smacked him with the gun. He just ran. I was still in the store. I heard shots. I ran out, jumped in the car, and left.
According to defendant, he was not the one who fired the shot. Because Kenny was the only other person with a gun, defendant deduced that he must have been the one who fired the shots.
After that robbery, defendant "dumped the Audi on Gamewell Street,... [and] dropped Jermaine off on the top of Lawrence Street." He, Kenny and Junior then drove the HackensackHasbrouck car to a parking lot behind the BP gas station in Hackensack. They "walked over to the door of the booth [of the gas station]. [Defendant] tried to open the door. The guy turned around and [they] left. [They] jumped in the car and [they] left." Defendant admitted that he and Kenny had their guns with them, and tried to open the door to commit a robbery. When asked if his weapon was ...