On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-08-2941.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 28, 2009
Before Judges Cuff and Waugh.
A jury found defendant Alvin Love guilty of first degree robbery, contrary to N.J.S.A. 2C:15-1 (Count Four), and second degree conspiracy, contrary to N.J.S.A. 2C:5-2 and 2C:15-1 (Count Six).*fn1 After merging Count Six with Count Four, defendant was sentenced to forty years imprisonment with an 85% No Early Release Act*fn2 period of parole ineligibility. The appropriate assessments, fees and penalties were also imposed.
On September 20, 2005, Harjinder Joshi was working alone at his store, the Universal Deli, in Collingswood. At approximately 8:45 p.m., two men entered the store. One man stood near the middle of the store; the other man selected a soda and brought it to the counter where Joshi was standing. After Joshi told the man at the counter the price of the soda, the man pulled out a gun, went behind the counter, and ordered Joshi to open the cash registers. Joshi complied and the second man put the money into a blue bag.
A few moments later, a car pulled up to Joshi's store. Joshi remarked that a customer was approaching the store, and the two men fled. Joshi promptly called 9-1-1 and the police arrived within five minutes. Joshi described the incident and the assailants to the police, and informed them of the store's video camera security system. The officers viewed the videotape and took it with them.
On September 21, 2005, Detective Frank Lee of the Collingswood Police Department showed Joshi eight photographs. Joshi selected co-defendant Neil G. Hunter as the man who had brandished a gun during the incident at his store. Joshi signed the back of Hunter's picture and stated in writing: "Yes, this is the man, 200 percent sure." Detective Lee presented Joshi another photograph identification series on September 26, 2005, at which time Joshi selected defendant's photograph as the other man involved in the incident. In addition to signing the back of defendant's photograph, Joshi wrote: "I think this is the guy who took the money with the other guy."
Between these dates, the Collingswood Police Department conducted surveillance and arrested Hunter. In addition, the police went to the Pennsauken residence of co-defendant Rodney E. Gay's father. Gay's father consented to a search of the residence, and police found a blue cooler bag containing two toy handguns that had been altered to look like real guns. Defendant, Gay, and co-defendant Gene Edmonds, Jr., were arrested outside of the residence.
Following the arrests, Detective Edward Corell interviewed Edmonds. He admitted to participation in the robbery at Universal Deli along with two other men. Detective Corell then showed still photographs of the assailants caught on the store's videotape. From these photographs, Edmonds identified one of the men as "Butchy." Defendant was known to Edmonds as Butchy.
Detective Corell also interviewed defendant after his arrest. Once shown the videotape from the store, defendant made a comment to the effect of "I guess you got me now."
Prior to defendant's trial, Edmonds entered a guilty plea to conspiracy to commit first degree robbery and he received a fifteen-year term of imprisonment. Thereafter, at defendant's trial, Edmonds testified that he drove Hunter, whom he knew simply as "KK," and the man named "Butchy" to Joshi's deli in Collingswood. Edmonds dropped the men off, left the scene, and returned when Hunter waved him down.
During his testimony, Edmonds stated that he did not recall anything he told police following his arrest due to his intoxicated state. On the other hand, he did not deny making a post-arrest statement to police in which he discussed his plans with Hunter, Gay, "Butchy," and another man named Burt, to rob a jewelry store in Collingswood. He also identified defendant as "Butchy."
The State presented other witnesses who contradicted Edmonds' testimony. First, Joshi testified about the incident and positively identified defendant at trial as the man who accompanied Hunter. Detective Corell testified Edmonds identified defendant in a post-arrest ...