On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-02-0457.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Wefing and Messano.
Defendant was indicted for robbery while armed, N.J.S.A. 2C:15-1; conspiracy to commit robbery while armed, N.J.S.A. 2C:5-2; aggravated assault, pointing a firearm, N.J.S.A. 2C:12-1(b)(4); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and receiving stolen property, N.J.S.A. 2C:20-7. Tried to a jury, he was convicted of conspiracy and acquitted of all other charges. The trial court sentenced defendant to nine years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed his conviction and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The charges against defendant were based upon an incident that occurred in the evening hours of January 6, 2007, in Atlantic City when three young people were robbed at gunpoint. They called the police, reporting that the robbers had fled in a black SUV. Within minutes, defendant and three others were apprehended when the SUV in which they were riding was stopped by the police. Items taken in the robbery and a handgun were found in the vehicle. The victims identified defendant and the other occupants, and they were placed under arrest.
Shortly before defendant's trial got underway, Jordan Johnson and Clarence Rogers, who had been passengers in the SUV, entered into plea bargains under which each pleaded guilty to theft and agreed to testify at defendant's trial. Both were minors at the time they were arrested, but jurisdiction had been waived to the Law Division. R. 5:22. Each had turned eighteen by the time of defendant's trial.
They each said that they were friends with Brooks Griffin, the driver, and had been visiting with him when he drove to Atlantic City and picked up defendant, whom they had never met. They said they were driving around Atlantic City when defendant pointed out the victims and said Johnson and Rogers were to rob them. When they demurred, he threatened them. Johnson and Rogers said they participated out of fear and that defendant was the individual who held the gun and threatened the victims. Rogers said that defendant tried to hand him the gun when the police signaled their car to stop, but Rogers refused to touch it; he said that defendant turned from the front passenger seat and placed the gun under the rear of the driver's seat so that it was protruding toward Rogers.
Defendant, who was some ten years older than Johnson and Rogers, took the stand and testified to a much different scenario. He said he was a friend of Griffin and that Griffin arrived with the two others, and the four spent some time in his apartment while he and Griffin, over drinks, discussed Griffin's marital problems, and the two young men played video games. He said that after a while they drove to the Inlet and parked the car. He and Griffin sat on the boardwalk, continuing their discussion, while the two others went off on their own. At some point the two older men told the two younger men they were leaving and headed toward the car. The two young men said they were going to get some food first, and Griffin and defendant waited at the car for them. Defendant said the two others ran up, jumped into the car laughing and tossed things into the rear. Griffin and defendant got out, looked into the rear and then saw three other people across the street. Defendant realized what the two had done and told Griffin to take him home quickly. He denied any involvement in the robbery and said it was wholly the work of Johnson and Rogers.
Two of the victims testified as well. Their testimony as to the circumstances of the robbery did not coincide entirely with that given by Johnson and Rogers. As noted at the outset of this opinion, the jury convicted defendant of conspiracy and found him not guilty of the remaining charges.
On appeal, defendant raises the following issues:
THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. R. 3:20; R. 4:49 ...