On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-12-0818.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2009
Before Judges Baxter and Alvarez.
Tried to a jury, defendant Darren A. Easley was convicted of first-degree robbery, N.J.S.A. 2C:15-1a(2), and fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-4e. On September 18, 2006, defendant was sentenced to fourteen years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery count, and a concurrent one-year term for the imitation firearm count. Appropriate fees and penalties were imposed. Defendant appeals and we affirm.
The following facts were developed at trial. On November 24, 2003, Nicholas Lombardo, a security officer employed at a Target store in Watchung, noticed defendant on the closed-circuit TV system as he quickly pushed a shopping cart into the store. Moments later, Lombardo saw defendant stacking items on the "baby seat" area of the cart. Because it is not uncommon for shoplifters to erect a wall behind which they can hide stolen goods in their clothing, Lombardo focused his attention on defendant. When defendant approached an aisle in the store not visible on the surveillance system, Lombardo left the security office, while his partner, Camille Jeanolouise, continued to attempt to monitor defendant's movements on-camera. As Lombardo approached defendant, he saw him "grabbing . . . [razor] blades and concealing them inside his coat." Lombardo radioed Jeanolouise, and asked Lavar Graves, a store manager, for assistance.
Lombardo confronted defendant within the vestibule area leading to the sidewalk as he was leaving the store. Defendant ignored him and continued to walk out of the store. Jeanolouise had arrived by then; he and Lombardo grabbed defendant's arms and unsuccessfully struggled to put defendant in handcuffs. Graves stepped in to assist. Lombardo testified that defendant was "quite belligerent," "non-cooperative," and denied having merchandise on his person.
When defendant broke free, he reached into his pocket and took out what appeared to be a handgun. As he did so, packages of razor blades fell out of his clothing onto the ground. Lombardo thought that the weapon looked like a black revolver, approximately twelve to fourteen inches in length. Graves described the gun as black with a brown handle, similar to a 22 caliber.
Graves testified that defendant pointed the gun at him and said, "I'll blow you the f--- away . . . ." Lombardo, who witnessed defendant brandishing the weapon and threatening to kill Graves, told defendant he was free to leave, but followed him from a distance as he walked across the store parking lot to a tan Nissan. Lombardo immediately reported the incident to the Watchung police.
The driver of the Nissan, Charles Ralph Lindsay Jones, was located soon after the report. He claimed he had merely given defendant a ride to the Target store and waited while he went inside. When defendant returned, Jones noticed that defendant was "agitated" and "nervous." Jones said defendant told him, "let's go, we got to get out of here." While he was driving away from the store, defendant pulled a small black toy gun with a brown handle from his waistband and showed it to Jones. Jones asked defendant what happened, to which defendant responded that he "had to do what [he] had to do." Jones drove defendant to buy cigarettes, dropped him off, and was headed towards home when stopped by police.
Jones agreed to assist the authorities, and located defendant on a street in Plainfield. He drove him to a predesignated spot, where he was pulled over by police, and defendant was arrested. A toy gun matching the description given by Graves was found on defendant's person. One of the officers who testified on behalf of the State was previously acquainted with defendant, and recognized him on the surveillance tapes.
On appeal, defendant raises the following points:
THE COURT COMMITTED REVERSIBLE ERROR WHEN IT INSTRUCTED THE JURY ON THE INCORRECT MENTAL STATE REGARDING THE ARMED ROBBERY CHARGE (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO CHARGE THE JURY ON THE LESSER INCLUDED OFFENSE OF TERRORISTIC THREATS (NOT RAISED BELOW).
THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY ON IMPERFECT SELF DEFENSE THAT, IF CHARGED, WOULD HAVE COMPELLED THE JURY TO CONSIDER WHETHER DEFENDANT BRANDISHED THE TOY GUN UNDER AN HONEST BUT MISTAKEN BELIEF HE NEEDED TO ACT IN SELF DEFENSE, NEGATING THE REQUIRED ELEMENT THAT DEFENDANT ACTED PURPOSELY TO PUT THE VICTIMS IN FEAR OF BODILY INJURY (NOT RAISED BELOW).
THE COURT ERRED WHEN IT CHARGED THE JURY ON THE USE OF DEADLY FORCE IN SELF DEFENSE WHEN THERE WAS NO FACTUAL BASIS FOR SUCH A CHARGE, FURTHER CONFUSING THE JURY AND PREJUDICING DEFENDANT BY PREVENTING THE JURY FROM FAIRLY CONSIDERING HIS DEFENSE (NOT RAISED BELOW).
THE PROSECUTOR'S COMMENTS ABOUT THE GRAND JURY PROCESS WERE IMPROPER BECAUSE HE URGED THE PETIT JURY TO CONSIDER THE FINDINGS OF THE GRAND JURY DURING ITS DELIBERATIONS (NOT RAISED BELOW).
DEFENDANT'S SENTENCE WAS EXCESSIVE AND CONSTITUTED AN ...