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State v. Oliver

August 19, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ERNEST OLIVER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. 04-10-1269.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 1, 2009

Before Judges Rodríguez, Payne and Newman.

Defendant Ernest Oliver appeals from his convictions for first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. After merging the convictions for robbery and possession of a weapon for an unlawful purpose, the judge imposed a sixteen-year term with a NERA*fn1 parole disqualifier. A concurrent four-year term was imposed for the possessory conviction. We affirm.

On April 20, 2004, around 1:00 a.m., LaRenda Parrish and Youdelyn Previlon were working at a Quick-Chek in Union when two masked gunmen entered the store and demanded money. Despite the fact that the gunmen wore ski masks, Parrish was able to determine that the gunmen were African-American. The gunman who initially approached Parrish was described as a male about five-feet-five-inches tall, between 140 and 150 pounds, with long dreadlocks, light eyes and wearing a black hooded sweatshirt and jean shorts. The second gunman was described as between five-feet-four and five-feet-five-inches tall and thinner than the other gunman. He was described as wearing gloves, a short sleeve shirt, jean shorts and Timberland boots.

Parrish was standing near the front door when one of the gunmen approached her, demanding that she give him the money in the register. The other gunman approached Previlon, who was standing near the cash register. He jumped over the counter, discharging his gun into the ceiling. Previlon became too frightened to open the cash register so the gunman next to Parrish pointed the gun at her ribs and forced her to assist in doing so. Both gunmen threatened to kill the store employees, with one of the gunmen telling Parrish, "I don't care about dying. I'll kill you, too."

During the robbery, Rodrigo Erazo, a regular customer, entered the store. The gunman next to Parrish ordered Erazo to stop and threatened, at gunpoint, to kill him. At the gunman's command, Erazo moved towards the counter with his hands raised.

Once the register was opened, the gunman behind the counter with Previlon took the money out of the drawer, stole some cigars and cigarettes and then jumped back over the counter. The other gunman brought Parrish into the back room and forced her to turn off the video surveillance equipment. Upon returning from the back room, the gunman stole some food.

Before leaving the store, the gunmen told Parrish that if she moved they would kill her. Parrish complied for a few minutes before calling the police from her cell phone.

Sergeant Harry Capko and Officer Odete Mirao of the Union Police Department responded. During the investigation, Sergeant Capko found a .380 caliber spent shell casing on the floor behind the cashier's counter. Detective Michael O'Brien determined that the bullet fired during the robbery passed through the roof and was unrecoverable.

On April 26, 2004, six days after the Quick-Chek robbery, a Foot Locker store in Union was robbed by armed gunmen in a similar manner. Officer Frank Marano responded to the Foot Locker and received a report implicating four African-American males wearing ski masks and gloves. The following day, Officer Pietro DiGena took a report from the Foot Locker manager about the robbery. The manager stated that the store was robbed by armed men and that one of the gunmen was wearing an olive green military jacket. Another gunman was wearing a black hooded sweatshirt. During the robbery, a customer tried to enter the store, but was turned away. The customer went back to his car and noticed that a vehicle was partially blocking the exit. The customer later described the car to the store manager as a 1995 silver Mitsubishi Galant with gray tinted windows, a damaged front fender and a broken right front headlight. The store manager did not indicate that the robbers were seen to have used that car to arrive at or to flee from the store.

On April 28, 2004, Officers DiGena and Barry Cohen were on patrol in a marked police car when they spotted a vehicle with a non-functioning right front headlight traveling toward them. Based on this observation, the officers followed the vehicle, a silver Mitsubishi Galant with gray tinted windows. The officers stopped the Mitsubishi and requested backup assistance from headquarters. Over the patrol car loudspeaker, Officer Cohen ordered the occupants to roll down the windows and put their hands in sight.

There were four occupants inside the Mitsubishi. Jonathan Black was identified as the driver, Kevin Drake as the front seat passenger, defendant as seated in the rear seat on the driver's side and Tariq McLamb, also known as Tariq McCullen, was in the other rear seat. The officers were further able to observe that the front seat occupants appeared to be passing something to the occupants in the rear seats.

The officers approached the Mitsubishi. They saw that Black, the driver, was wearing a black hooded sweatshirt and that Drake was wearing a green military jacket. From outside the Mitsubishi, Officers DiGena and Marano noticed masks and gloves on the floor of the vehicle. The officers then drew their weapons and ordered the occupants to keep their hands in sight. The officers asked the occupants what they had been passing around. The occupants denied making any such motions. The occupants were then individually removed from the vehicle and patted down for weapons. No weapons were found on the occupants.

Officer Marano looked inside the vehicle, and he noticed that the rear seat cushion was popped out of place. Marano pulled on the seat, exposing a hole leading to the trunk where he saw a loaded .38 caliber Colt automatic handgun loaded and cocked. Because of the risk that the handgun would discharge if pulled through the hole, Marano opened the trunk to retrieve the gun safely. In doing so, he moved a large speaker box that was blocking his access to the gun. When moving the speaker, the officer observed a loaded .45 caliber handgun behind the driver's side rear seat. Marano retrieved both guns and removed the magazines. In addition, Marano recovered a six-inch knife that was in the driver's door pocket.

The four occupants were taken into custody. During the booking process, a Winchester .380 caliber round was found in the right front pocket of Drake's green military jacket.

While in custody in his cellblock, defendant indicated to the officer on duty that he wanted to speak with a detective. Defendant was brought to an interview room where he was read his Miranda*fn2 warnings. After being given the Miranda waiver form, defendant was again read the Miranda warnings and signed it, indicating that he understood each of the Miranda rights.

Defendant then made a voluntary statement, implicating Black and Drake as the owners of the weapons and the gloves found in the car. He denied any knowledge of the Quick-Chek robbery. In response to Detective Fuentes's questions, defendant answered that he did not wear glasses, but that he needed glasses to read.

The next day defendant again asked to speak with a detective. Detective Christopher Baird met defendant in an interview room and advised defendant of his Miranda rights. Baird gave defendant a copy of the Miranda waiver form. Defendant appeared to be reading the form as Baird read it aloud. Defendant signed the rights' waiver form. In response to Baird's initial questions, defendant again answered that he did not wear glasses, but that he needed glasses to read.

Defendant admitted involvement in the Quick-Chek robbery. He stated that after robbing a Seven-Eleven store, he, Black, Drake and another unidentified male scoped out the Quick-Chek. Defendant went into the Quick-Chek, purchased four drinks and returned to the car, reporting to the others that there were people in the store. After a couple of minutes, defendant, who was driving the car, let Black and Drake out on a side street. Defendant parked the car at the first corner, as instructed. Minutes later, Black and Drake returned with money and a box of doughnuts. Upon entering the vehicle, Drake instructed defendant, "drive, drive, we got to get out." Drake then told defendant that when he was yelling at the woman in the store the gun went off unintentionally. Defendant proceeded to drive to the outskirts of Newark. He said that at some point he did not ...


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