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State v. Miller

January 14, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ADRIAN MILLER, A/K/A MICHAEL SMITH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-03-0684.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 8, 2009

Before Judges Carchman and Parrillo.

Following a jury trial, defendant Adrian Maleek Miller was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Following this verdict, the same jury convicted defendant of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b(1). After granting the State's motion for a mandatory extended term and appropriate mergers, the judge sentenced defendant to a mandatory extended term of thirty years subject to NERA, N.J.S.A. 2C:43-7.2, on the first-degree armed robbery offense to run concurrent to an eighteen-month sentence on fourth-degree aggravated assault offense; fifteen years on the second-degree weapons offense and five years on the third-degree weapons offense, together with mandated fines and penalties. The sentences were to also run consecutive to the sentences defendant was presently serving on unrelated convictions. Defendant appeals, and we affirm.

These are the relevant facts adduced from the trial record. Wonil Pak was the owner of the Super Discount Store located at 700 Main Street in Asbury Park. He was working behind the counter on the evening of August 15, 2006, when a man, later identified as defendant, walked in at approximately 6:00 p.m.

Defendant picked up a hand phone and gave Pak a ten dollar bill to pay for it. When Pak handed defendant his change, defendant pulled a gun out of his pocket and pointed it at Pak, demanding money. Pak handed some cash to defendant, who demanded more. Defendant then jumped onto the cashier counter and attempted to take money from the cash register. Pak hit defendant's hand, causing defendant's gun to fall to the floor. A struggle between Pak and defendant ensued. During this struggle, defendant grabbed Pak's neck, and Pak proceeded to bite defendant's hand. Both men fell to the floor in front of the counter and the gun went off "two or three times." Following the discharge of the weapon, defendant fled. Pak then pressed a panic alarm button, alerting the police to the scene.

Officer Charles Grays of the Asbury Park Police Department responded to the alert, arriving on the scene within two to three minutes. Grays observed three shell casings on the floor of the store as well as a black baseball cap, a pair of sunglasses and a gray and white Nike sneaker. Pak indicated that these items were not in his store before defendant's arrival.

A witness, Whitney Valentin, walked into the store while the robbery was in progress. Although Valentin signed a statement indicating that he was present during the robbery and describing defendant, he later denied remembering any events of that night or signing any statement to that effect.

Pak was subsequently escorted to police headquarters, where he gave a videotaped statement. Pak described the man as "a little bit taller [than him], and a little bit skinny, as was black male." In his statement, Pak identified the assailant as wearing a dark colored short-sleeved shirt. While testifying at trial, Pak corroborated his earlier description but indicated that defendant was wearing dark clothing and a cap.

While Pak was at police headquarters providing a formal statement to officers, Wanda Lopez residing a short distance from Pak's store, heard a knocking at her door at 6:30 p.m.

She called her husband, Raymond Lopez, who immediately returned home. Upon arriving home, Mr. Lopez observed a black male laying in his back yard, appearing hurt. He recognized the man as defendant, a friend of his son's. Mr. Lopez called 9-1-1.

Officer Tyrone McAllister of the Asbury Park Police Department responded to Mr. Lopez's call and arrived at the Lopez residence at approximately 6:51 p.m. Officer McAllister observed defendant, whom he described as a black male, in the back yard, wearing black sweatpants and white socks but no shoes and no shirt. A gray and white Nike sneaker was found on the ground five or six feet from defendant, and a black t-shirt was found at the bottom of the Lopez's pool. Officer McAllister observed defendant had a gunshot wound to his abdomen and called the paramedics.

Defendant was transported to the Jersey Shore Medical Center where he was treated for a gunshot wound and eventually identified himself as Adrian Miller, after having originally identified himself as Michael Smith.

The following day, August 16, 2006, Detective Arthur Wisliceny of the Monmouth County Prosecutor's Office reported to the Medical Center to take photographs of defendant's injuries. Detective Wisliceny took several photographs of defendant's body, including his left hand, which he observed had sustained "an injury of some type."

At trial, the State proffered George Chin, a criminalistics expert with the New Jersey State Police, who had examined the sneaker retrieved from Pak's store and the sneaker found near defendant at the Lopez residence. Chin concluded "they basically comprised a pair." Both shoes were a size 12, white Nike Air Max sneakers. The sneaker found at the store was a right shoe, while the sneaker found next to defendant was for the left foot. Mr. Chin stated that both sneakers displayed similar "wear and tear."

Swabs of epithelial cells taken from the sweatband of the cap found in the store and the sleeve of the t-shirt found in the Lopez's pool yielded matching DNA, which was defendant's DNA. The probability of a random match for defendant's DNA profile among black males was estimated to be one in 114 quadrillion. No fingerprints were obtained from the gun found at the store as the "type of surface is not conducive to . . . fingerprints. It is very textured." Fingerprints from the sunglasses were also unobtainable. Officer James Ryan, a ballistics expert, was not able to conclusively show that that the fragmented cartridges were fired from the gun found at the scene. However, he stated that in his opinion three shell casings were fired from that gun.

Defendant did not testify or call any witnesses on his own behalf. ...


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