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State v. Miller

August 19, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JASON M. MILLER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-04-0439.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 16, 2008

Before Judges Parker and LeWinn.

Defendant Jason M. Miller appeals from the judgment of conviction entered on April 13, 2006, after a jury found him guilty of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-2; second-degree robbery, N.J.S.A. 2C:15-1; and fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant was sentenced to an aggregate term of six years subject to an eighty-five percent parole ineligibility period pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2(a) (NERA). For the reasons that follow, we affirm.

I.

Middlesex County Indictment No. 05-04-0439 charged defendant with second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and 5-2; first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and 39-5(b); and second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a). The indictment also charged co-defendants Joshua Lowels and Wilbert Thomas on the first two counts; Thomas and co-defendant Maurice Lowels were also charged with hindering apprehension or prosecution, N.J.S.A. 2C:29-3(a). Joshua and Maurice Lowels and Wilbert Thomas entered negotiated plea agreements; all three testified against defendant at trial.

The trial evidence may be summarized as follows. On January 7, 2005, Neydy Pichardo went to the office of Triple A Bail Bonds (Triple A) in North Brunswick, with $6000 to post as bail for her incarcerated boyfriend. She went there at the recommendation of an individual known to her as "Will," later identified as co-defendant Wilbert Thomas.

Pichardo encountered Thomas and another man, later identified as Maurice Lowels, in the office and completed paperwork for the bail bond, which took approximately three to four hours. She then counted out $6000 in cash, which Maurice picked up. At that point, a tall thin man, later identified as defendant, wearing a mask and holding a "pistol" came into the office and went "exactly to the place where the money was." Pichardo testified that defendant showed her the gun, took the money and then pointed the gun at her and asked if she "had any more money."

Thomas commented that the gun was a toy gun. At that point, defendant ran out of the store with Thomas and two other employees in pursuit. Pichardo testified that her money was never returned to her and she was not able to post bail for her boyfriend.

Joshua Lowels testified that he worked at Triple A with his brother Maurice, and had known defendant for about three or four years. On the date in question, Joshua arrived at Triple A to find Pichardo filling out the paperwork for a bail bond. Joshua concluded that Pichardo would not be able to post bail with the $6000 she had brought. Therefore, Joshua telephoned defendant and "told him to come rob the place," because defendant owed Joshua $5000. Joshua told defendant that "there was six thousand dollars laying out on the table and to come rob it . . . [and] [j]ust come stick the place up."

Joshua further testified that when defendant arrived at Triple A, "[h]e came in the door with a gun, waved it around[,] . . . [and] said where's the money?" Joshua observed defendant reach over to the desk and "grab[] the money off the desk right in front of [him] and [Maurice]," and heard defendant ask where the rest of the money was.

Joshua heard Thomas ask defendant if he was holding a paint ball gun. At that point defendant ran out of the building. Thomas pursued defendant and tackled him. Joshua testified that he followed Thomas and also tackled defendant so that he could tell Thomas to let defendant go. Thomas let defendant go, and defendant ran away.

Thomas then told Joshua that in order to ensure his silence about the incident, Joshua would have to pay him a portion of the money. That evening Joshua and Thomas arranged a deal at defendant's house regarding a payment to Thomas.

Maurice Lowels confirmed the other witnesses' descriptions of the events at the bail bond office. Maurice also testified that he called the police after the incident and later that day he went to police headquarters and gave a statement as to what occurred; Joshua and Thomas accompanied Maurice to the police station.

Maurice stated that he heard Joshua and defendant discuss Thomas' request for a share of the money. Maurice became "scared and . . . nervous" as he realized that he might be implicated in the incident. Defendant gave some money to Joshua who, in turn, gave the money to Maurice to hide.

Wilbert Thomas also corroborated the testimony of the other witnesses. Thomas testified that after he chased and tackled defendant, Joshua approached and pushed him away and defendant ran off. Joshua told Thomas that "he knew what was going on the whole time . . . ." Thomas stated that Joshua offered him money to remain quiet and to change his story. Thomas agreed and received $1000 from Joshua two days later.

Defendant testified. He acknowledged that he owed Joshua $5000. Defendant stated that on January 7, 2005, Joshua called to inform him that there was a woman at Triple A with cash and that defendant should "come in and . . . make it look good and take the money off the table and leave." Defendant stated that Joshua assured him not to worry and that it would be "taken care of."

Defendant testified that he got into his car with a paint ball gun, spoke to Joshua by cell phone about the timing of his arrival, and then entered Triple A waving the gun around and looked for the money on the desk. Upon seeing the cash, defendant asked where the rest of the money was because Joshua had told him there would be $10,000 in cash and defendant believed the amount of bills on the table did not add up to that sum.

Defendant asked Pichardo if she had any more money; she replied that she did not. Joshua then said, "You got what you came for, now leave," which defendant took as his "cue to leave," and ran out the door. Defendant stated that he did not actually run from Triple A because he believed that everyone at the office was in on the plan. Therefore, when Thomas tackled defendant, he yelled at Thomas, "it's me."

Defendant later met Joshua and Maurice at his home. Defendant gave Joshua $1000 at that time; about a week later he gave Joshua another $2000 and kept the rest of the money for himself.

Defendant testified that he never threatened Pichardo with death or harm, and that it was never his intent to put her in fear of bodily harm. Rather, he stated that his intent was "to steal the money and make it look good[.]" Defendant acknowledged, however, that he intended that Pichardo believe the paint ball gun was real. Defendant further acknowledged that the testimony of all the State's witnesses was true.

Immediately prior to sentencing on April 13, 2006, defendant moved for a new trial, contending that the verdict was against the weight of the evidence. The trial court denied ...


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