On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-1280.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Lisa, Baxter and Coburn.
A jury found defendant guilty of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (Count One); first-degree armed robbery, N.J.S.A. 2C:15-1 (Count Two); third-degree criminal restraint, N.J.S.A. 2C:13-2 (Count Three); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (Count Eight); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Nine); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (Count Eleven). After merging Count Eleven with Count Two and Count Eight with Count Nine, the judge sentenced defendant to the following concurrent terms of imprisonment: seven years on Count One, fourteen years on Count Two, four years on Count Three, and four years on Count Eight. The sentence imposed on Counts One and Two included parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, for eleven years, ten months and twenty-five days.
Around 6:00 or 6:30 p.m., on July 8, 2005, Adan Osorio Rodriguez, whose last name was Osorio in the record, went to New Brunswick, cashed a payroll check, and around 8:00 p.m. arrived at a house of prostitution at 313 Handy Street. Jose Alvarenga let Osorio in and brought him to a room upstairs. There, defendant pointed a gun at Osorio, tied his hands, and took his money. Defendant and Alvarenga then took Osorio to another room, which held two men whose hands were also tied. During the next two hours, two more bound victims were placed in the room.
Defendant and Alvarenga left, and shortly thereafter Osorio freed himself and one of the other victims. About five or ten minutes later, Osorio saw New Brunswick police officers detaining Alvarenga, who had been stopped for behaving suspiciously. Osorio told the police what Alvarenga and defendant had been doing. The police arrested Alvarenga and went into the building, and then went to the police station with Osorio and two other victims. After giving a brief statement, Osorio went at about midnight to a nearby train station to go home, and saw defendant on the platform apparently waiting for a train. Osorio returned to the ground level and, at his request, a taxi dispatcher called for the police.
While waiting for the police, Osorio noticed that a train was arriving. He ran back to the platform and confronted defendant, detaining him until the train left. Shortly thereafter, the police arrived, but apparently they were not New Brunswick police officers. The police told Osorio to leave, and he walked back to the police station. At about 1:00 a.m., Osorio gave one of the officers a second statement and a full description of defendant. New Brunswick police officers then went to the train station, saw defendant, who matched the description given by Osorio, and brought defendant back to the police station. Osorio looked at defendant from behind a oneway mirror and identified him as the robber with the gun. Defendant provided the police with his home address in Westbury, New York. Earlier in the evening, Alvarenga had provided his home address in Westbury, New York. Osorio identified Alvarenga and defendant in court at trial. The jury found both men guilty.
On appeal, defendant offers the following arguments:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO RECORD AND DOCUMENT THE ...