On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-02-0121.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2009
Before Judges Graves and J.N. Harris.
Three robberies occurred in the darkness of August 25, 2003, all within one mile of each other in Paterson. Two victims were together at the time they were accosted by an individual wielding a weapon and were forced to turn over their personal property. The other victim was robbed by a person at knifepoint earlier in the evening - perhaps only minutes earlier - and was relieved of an empty wallet.
Defendant was apprehended on the night in question and charged with committing the crimes. The robberies and associated weapons possession charges were tried together. The jury convicted defendant of two counts of first-degree robbery, one count of second-degree robbery, one count of third-degree possession of a weapon for an unlawful purpose, and one count of fourth-degree unlawful possession of a weapon.
Defendant moved prior to the first trial to sever the charges. The motion was denied by Judge Ralph L. DeLuccia, Jr. Defendant's first trial was held in September 2006, before Judge Ronald G. Marmo. That trial ended in a hung jury. Commencing on May 29, 2007, defendant was retried before Judge Marmo and a new jury in a trial that lasted four days. Judge Marmo, after taking the jury's verdict, merged the weapons convictions into the robbery convictions and imposed an aggregate sentence of eight years, subject to the requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appeals and we affirm.
In the early morning hours of August 25, 2003, defendant Shamir Jackson approached an individual near Main and Barclay streets in Paterson. Defendant demanded that the victim empty his pockets at knifepoint,*fn1 initially taking the victim's wallet, but then dropping it on the ground when it proved bare of cash. Defendant then drove away.
Following the encounter, the victim called 9-1-1. When police officer Luis Cruz responded to the scene, the victim described the perpetrator as a black male wearing a grey, hooded sweatshirt and blue jeans, with braided hair. The license plate number of the automobile was provided to police officer Cruz.
On the same night, defendant approached two men standing outside a bar located on the corner of 21st Avenue and Gray Street. One victim later told the police that defendant exited his car, flashed what appeared to be a police badge, identified himself as a police officer, and told the men to get against the wall. Defendant was said to be holding a knife. Defendant removed two one-dollar bills from one of the victim's pockets. The other victim was ordered to relinquish his cell phone before defendant drove away.
Immediately after the second robbery, one of the victims and a friend jumped in the friend's car and followed defendant's automobile. The other victim remained outside the bar, and flagged down police officer Gary DeStefano fifteen minutes after the robbery. The police officer was informed that a "black male . . . with braids wearing a white T-shirt and blue jeans" pulled up to the corner in a "black, older model, four-door box-type vehicle." A description of the suspect and automobile was broadcast on police radio.
Police officer Steven Leischman was on patrol across town approximately two miles from the bar. As he was driving along, he observed the victim and friend's motor vehicle. The driver was sounding the horn and gesturing towards defendant's automobile directly in front of him. Officer Leischman activated his overhead lights and stopped defendant's automobile a few blocks later. The motor vehicle carrying one of the victims and his friend also stopped at the scene. Officer Leischman observed a gold-handled knife, a cell phone, and two one-dollar bills lying on the front passenger seat in defendant's automobile. Defendant was positively identified by two of the victims as the man who robbed them together at knifepoint. Defendant was placed under arrest.
On February 11, 2004, an indictment was filed, charging defendant with three counts of first-degree robbery, N.J.S.A. 2C:15-1(a); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).
On May 5, 2006, Judge DeLuccia denied defendant's motion to sever two of the robbery counts from the other one. For purposes of the motion, the parties did not dispute the material facts; therefore, no testimony was taken and the court relied on ...