On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-03-00224-I (A-4331-06T4 and A-0552-07T4) and 06-03-00225-I (A-0552-07T4).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2009
Before Judges Lisa and Alvarez.
Defendants, George Caldwell and Timothy Glenn Watts, appeal from their convictions arising out of an armed robbery on November 3, 2005 in Linden. Their appeals were calendared back-to-back, and we now consolidate them for disposition in a single opinion.
Union County Indictment No. 06-03-00224 charged both defendants with six counts as follows: (1) first-degree armed robbery, N.J.S.A. 2C:15-1; (2) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; (3) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; (4) fourth-degree possession of hollow-nosed bullets, N.J.S.A. 2C:39-3f; (5) third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); and (6) third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3). Caldwell was further charged in the single count of Union County Indictment No. 06-03-00225 with an additional offense arising out of the same incident, second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7.
Both defendants moved to suppress physical evidence. After that motion was denied, Watts went to trial. The jury convicted him of the armed robbery count, but acquitted him on all other counts. The judge sentenced Watts to eleven years imprisonment, subject to an 85% parole disqualifier and five years parole supervision, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Caldwell then went to trial, but the trial ended with a deadlocked jury. Rather than retrying the case, the prosecutor entered into a plea agreement with Caldwell, by which he would plead guilty to the armed robbery and certain persons charges, and receive concurrent sentences not to exceed a total of ten years. The judge further entered into a non-negotiated plea, see R. 3:9-3(c), agreeing to sentence Caldwell for the first-degree robbery in the second-degree sentencing range, see N.J.S.A. 2C:44-1f(2), to five years imprisonment subject to an 85% parole disqualifier and three years*fn1 parole supervision pursuant to NERA, and a concurrent five years imprisonment with a five-year parole disqualifier for the certain persons offense. Caldwell pled guilty to those two counts, and was sentenced in the manner previously indicated by the court.
Caldwell appeals only the denial of his suppression motion. See R. 3:5-7(d). In particular, he argues:
DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED WHERE THE SEARCH WAS CONDUCTED WITHOUT A WARRANT AND NO EXCEPTION TO THE WARRANT REQUIREMENT EXISTED.
THE POLICE LACKED A REASONABLE SUSPICION TO PULL BEHIND THE VEHICLE OCCUPIED BY THE DEFENDANT AND THEREBY CONDUCT A TERRY STOP AND ORDER THE DEFENDANT TO LAY ON THE GROUND.
NO EXIGENT CIRCUMSTANCES EXISTED TO JUSTIFY THE WARRANTLESS ENTRY INTO, AND SUBSEQUENT SEARCH OF THE CAR.
NO COMMUNITY CARETAKING EXCEPTION TO THE WARRANT REQUIREMENT EXISTED UNDER THE FACTS OF THIS CASE.
Watts raises the following arguments on appeal:
THE JURY CHARGE DESCRIBING THE MENTAL STATE NECESSARY FOR AN ACCOMPLICE TO BE GUILTY OF A PRINCIPAL'S FIRST-DEGREE ARMED ROBBERY WAS INCORRECT AND WARRANTS A NEW TRIAL.
THE TRIAL COURT SHOULD HAVE SUPPRESSED THE EVIDENCE WHICH POLICE SEIZED FROM THE CAR DEFENDANT WAS DRIVING.
DEFENDANT'S STATEMENTS TO POLICE SHOULD HAVE BEEN SUPPRESSED.
THE COMMENTS BY THE PROSECUTOR DURING SUMMATION WERE PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL.
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE EXPERT-TYPE TESTIMONY THAT WASN'T QUALIFIED AS SUCH AND ON WHICH NO INSTRUCTIONS WERE GIVEN TO THE JURY (PLAIN ERROR).
DEFENDANT'S SENTENCE IS EXCESSIVE AND IMPROPER.
We reject the arguments of both defendants that the trial court erred in denying their suppression motions. Accordingly, Caldwell's conviction is affirmed. However, we agree with Point 1 raised by Watts and reverse and remand for a new trial as to him.
Caldwell was the principal in committing the armed robbery. Watts was tried under principles of accomplice liability. He drove Caldwell to and from the crime scene.
At about midnight on November 3, 2005, Bhupinder Singh was working as a gas station attendant in Linden. An assailant, wearing long-sleeved clothing and a mask, approached him on foot, brandishing a handgun, and demanded money. Singh turned over the day's receipts at the gas station, totaling about $700 to $900. The assailant, later identified as Caldwell, ran to a waiting car, driven by another individual, later identified as Watts. Singh was able to ascertain that the assailant was African-American. Singh provided the police with a general description of the car, including that it had no license plate and a white piece of paper attached. When the car drove off, Singh immediately telephoned the police.
One officer responded to the gas station and interviewed Singh, after which he broadcasted the information he obtained. Another officer, who was on patrol, observed a vehicle matching the description given about one mile from the gas station. It was being driven between fifty and sixty miles per hour in a twenty-five miles per hour zone. That officer followed the vehicle for about one minute, until it pulled into a 7-Eleven parking lot. ...