On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 04-01-0089 and 04-01-0106.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Payne and Newman.
Following a jury trial, defendant Willie L. Tanner was convicted of first degree attempted murder, N.J.S.A. 2C:11-3a; five counts of first-degree armed robbery, N.J.S.A. 2C:15-1; and several other related offenses. The judge imposed concurrent terms aggregating forty-five years with a NERA*fn1 parole disqualifier. We affirm the convictions and sentences, except that we reduce the sentence on count twenty-five to three years.
These are the salient facts.
On August 5, 2003, Chinna Kundurv was working at an Exxon gas station on Route 1 in South Brunswick. At approximately 3:15 a.m., a man entered the store wearing a black mask and a loose-fitting, long white t-shirt. The man was about five-feet-six-inches tall and "a little fat." He was holding a white or silver gun, which he pointed at Kundurv's head. The man told Kundurv to open the safe but Kundurv did not have the keys. Instead, the man took money from the cash register and six dollars from Kundurv's wallet before leaving the store. A review of the video surveillance tape established that the man who committed the crime was an African-American male, of medium-to-stocky build, who held the gun in his left hand.
The next day, Abdul Imran was working as an attendant at a Sunoco gas station located on Route 1 in Edison Township. Sometime between midnight and 1:00 a.m., he was sitting inside a cubicle by the gas pumps when a car stopped nearby. When he opened the door to the cubicle, the car drove off and a man entered the cubicle holding a silver-colored gun. The man demanded money. Imran described the man as a black male, between five-feet-six-inches and five-feet-ten-inches tall, with a medium build and mustache. He wore a black, open-faced mask, a white baggy shirt and dark gloves. The man took all the cash in Imran's pocket and the cash register before fleeing on foot. Imran activated the security alarm. The police searched the immediate area but did not find the suspect or any physical evidence. The surveillance videotape confirmed Imran's version of the robbery.
On August 28, 2003, Surinder Singh was working at a Krauszer's grocery store on Livingston Avenue in North Brunswick. Between midnight and 1:00 a.m., a man wearing a mask entered carrying "a silver handgun with a white handle." The man jumped over the counter at the front register and ordered two store employees, Sharad Desai and Narendra Yash, to lie down on the floor. When Yash looked up, the intruder hit him on the left side of his head with a fist and a gun. The masked man did not see Singh, who was behind the counter at the back of the store.
The man took the cash from Desai's wallet and Yash's pocket and ordered Desai to open the cash register. When the man backed up, he began to trip over Yash's legs. The man fired a shot at Yash that went past Yash's head. The man fired a second shot that hit Desai in the back as he was lying face down on the floor.
Singh had hidden himself in a small storeroom when the man entered but came out when he heard gunshots, swinging a mop and throwing a twelve-pack of soda cans at the man. The man left the store and fled south on Livingston Avenue. Singh called 9-1-1.
A review of the surveillance tape showed a black male of "small to medium build," wearing a white T-shirt, a ski mask with a white North Face logo and a watch on his right wrist. The man approached the counter, holding a gun in his left hand and pointing it in all directions. The tape also showed the victims and depicted Singh chasing the suspect out of the store while holding a mop. Police investigators recovered the second discharged bullet. Testing confirmed the projectile was.38 caliber/.357 Magnum caliber.
At approximately 9:30 p.m. on September 10, 2003, a Shell gas station in Edison was robbed of approximately $600. The attendant, Cihan Polat, described the suspect as a black male who carried a silver gun and wore a baggy white T-shirt, baggy blue jeans, and a black mask with a North Face emblem. The mask covered the suspect's face, except for cut-outs over the eyes.
The suspect was approximately five-feet-six-inches to five-feet-eight-inches tall, with a medium build.
Polat was alone when the man entered the attendant booth, "frisked" him, and took money from the cash register. The man then fled on foot across the station towards a building next to the Waldon Village parking lot. After the suspect rounded the corner of the building, Polat saw a brown four-door Honda or Acura pull out of the parking lot, make a left onto Old Post Road, and then turn left onto Route 1 South. The surveillance videotape confirmed Polat's account of the robbery.
On October 2, 2003, at approximately 9:05 p.m., East Brunswick Township Police Officers Mark Csizmar and Jason Rios were in an unmarked patrol car when they observed a man walking in the middle of West Amherst Street. They followed him in their vehicle as he walked down several streets towards Route 18 before entering the parking lot of a small strip mall on Highland Street. The strip mall was located near two gas stations on Route 18. The man walked to the back of the parking lot and into some bushes against a fence. When the man entered the bushes, Csizmar exited the patrol car to investigate, believing the man was going to urinate.
The man, later identified as defendant, was five-feet-seven-inches tall with a stocky build. He wore a white t-shirt, baggy jeans, work boots, a black jacket, a black knit cap and a silver watch on his right wrist.
When Csizmar pointed his flashlight, defendant pulled a silver handgun from his waistband with his left hand and threw it onto the ground. Csizmar drew his service revolver and ordered defendant to lie down on the ground, where Rios handcuffed him.
Defendant had no identification with him but said his name was Mookie Jackson and that he lived in Franklin Township in Somerset. He told Csizmar that he found the gun, a loaded,.25 caliber, semi-automatic silver Taurus, in New Brunswick. This was not the same gun used during the robbery in South Brunswick on August 5, 2003.
After searching him for other weapons, Rios ordered defendant to sit on the curb; he proceeded to remove defendant's boots as Csizmar called for a transport vehicle. Defendant jumped up and began running through the parking lot towards Route 18, where he entered the northbound lanes into oncoming traffic. Csizmar and Rios gave chase. Two other officers tackled defendant when he left the roadway. As Csizmar approached, he told defendant, "you know, it's only a gun charge, it's not a reason to try and kill yourself." Defendant replied, "if you knew what I did you would run, too." Defendant had a small amount of marijuana in his possession.
After receiving Miranda*fn2 warnings, defendant was taken to East Brunswick police headquarters. Defendant was again read the Miranda warnings, which he initialed and signed with his left hand. He told the interrogating officers that his name was Mookie Jackson and gave an incorrect address. The automated fingerprint identification system revealed that defendant's real name was Willie Tanner, and that his last two known addresses were in Somerset.
Officers went to defendant's residence and, after confirming that defendant lived there and after obtaining his mother's consent, searched the basement where he stayed. The search uncovered a shoe box containing money, a white T-shirt, Timberland shoes and two spent shell casings from a.35 caliber gun. Officers also searched the residence of defendant's girlfriend, also with her consent. They were given a plastic bag containing a white T-shirt and a pair of dark blue jeans, which the parties stipulated in court were the property of defendant. They also received a second plastic bag containing a pair of jeans, some change, a "Stacker" bottle and a pair of white Timberland boots.
Shortly after defendant's arrest, at approximately 9:46 p.m., East Brunswick police officer Jeffrey Marino was in a patrol car when he noticed a tan Hyundai driving slowly in a residential area near Highland Street. The car was braking frequently, as if the driver was looking for someone. Marino conducted a motor vehicle stop and the driver, Willie Johnson, gave a conflicting story about why he was there. After smelling burnt marijuana inside the car, Marino searched the front seat area and found the ashtray contained a partially smoked "blunt," or a marijuana cigarette. Marino placed Johnson under arrest and performed a body search; he discovered a small bag of marijuana inside Johnson's sock. Marino then took Johnson to East Brunswick headquarters, where he was charged with marijuana possession.
Johnson admitted to driving defendant to the robberies, parking the car, waiting for his return, and driving defendant home. Johnson said defendant would tell him where to go and that he had "heat," meaning a gun. Johnson said that, on the night of their arrest, he drove defendant to East Brunswick because defendant said he needed money. Johnson agreed to plead guilty to conspiracy and testify against defendant in return for a sentence recommendation of three years in state prison with an eighty-five percent parole disqualifier.
East Brunswick police detective Edward J. Conlon testified that, sometime around 9:26 p.m. the night of defendant's arrest, he received a dispatch to return to headquarters and interview two individuals in custody. When he got there, he attempted to speak with defendant, who did not wish to speak. The judge instructed the jury to "totally disregard" the statement.
Defendant testified. He described himself as five-feet-five-inches tall and predominately right-handed.
According to defendant, on October 2, 2003, a friend drove him to East Brunswick to purchase marijuana from Johnson. The friend drove "down Route 18" and parked at a gas station. Defendant exited the car and walked down the street looking for Johnson while talking to him on his cell phone. When they met in a parking lot, two police officers "jumped out" of an unmarked car with their guns drawn. Johnson ran, but he "froze." Defendant was wearing a black jacket, blue hat, white T-shirt, blue jeans, and boots. He denied ever having a black knit North Face mask or a small silver-colored semi-automatic gun.
Defendant stated that Johnson never drove him to any robberies in 2003 and denied involvement in any of the charged robberies. Defendant admitted only to purchasing four bags of marijuana, to hindering his own apprehension by running, and to giving a false name. Defendant further expressed the belief that Johnson committed the robberies and that it was easier for the police to blame defendant because he was a convicted felon.
Defendant denied ever owning a handgun or showing one to an ex-girlfriend named Kaihala Staten. He said he had moved out of his mother's basement in March 2003 and that a lot of different people had been down there. The two shell casings found by the police in the basement did not belong to him.
The State presented one rebuttal witness, Patrick Royce, a corrections officer, who testified that he observed defendant use his left hand to write, brush his teeth, eat, and move pieces on a chessboard. Royce made these ...