On appeal from Superior Court of New Jersey, Law Division, Essex County Indictment No. 08-01-0205.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2010
Before Judges Wefing, Grall and LeWinn.
A jury found defendant Dashawn Miller guilty of conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, two counts of first-degree robbery, N.J.S.A. 2C:15-1, second-degree burglary, N.J.S.A. 2C:18-2, third-degree unlawful possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b, second-degree possession of a firearm, the sawed-off shotgun, with the purpose to use it unlawfully, N.J.S.A. 2C:39-4a, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. Defendant's convictions for conspiracy and possession of a firearm with an unlawful purpose were merged with his convictions for first-degree robbery.*fn1 The judge sentenced defendant to an aggregate term of twenty-eight years, subject to periods of parole ineligibility and parole supervision mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The aggregate sentence includes consecutive fourteen-year terms for the first-degree robberies and concurrent terms within the statutory range for burglary, possession of a sawed-off shotgun and resisting arrest. The mandatory fines, penalties and assessments were imposed.
We affirm defendant's convictions and sentence but remand for correction of the judgment of conviction, which erroneously reports defendant's conviction for second-degree burglary as a conviction for second-degree robbery and misstates the aggregate sentence and the NERA parole term on one count of first-degree robbery.
On the afternoon of October 9, 2007, Benjamin Pichaya, Milton Dominquez and Alfredo Cortez were installing hardwood flooring in a new multi-family residence in Irvington. Defendant and a juvenile entered the room in which they were working. Defendant, the heavier set of the two intruders, pointed a gun at the workmen and directed them to put up their hands. While defendant held the gun, the juvenile took sixty dollars from Pichaya and forty dollars from Dominquez. Cortez was also searched, but he did not have any money. The juvenile handed the money he retrieved to defendant. Both of the intruders were wearing white t-shirts and red hats.
The intruders left the house. Pichaya and Dominquez called the police, but the call was disconnected. They used a cell phone to contact their boss; he stayed on the line while Pichaya and Dominquez followed the intruders and described their location. When police cars arrived, the workers returned to their job site.
Officer Kelly, who had received a report of a robbery involving a gun committed by two men wearing white t-shirts and red hats, spotted defendant and his companion. Defendant was also wearing a white jacket. Officer Kelly stopped the police car, jumped out and ordered the men to get on the ground. The juvenile put his hands up, but defendant ran. Officer Kelly restrained the juvenile and noticed that defendant was holding something under his jacket. As defendant ran north on 20th Street, Officer Kelly saw him take off his jacket and throw something in a bush beneath a tree. Defendant then ran east, through "yards" and toward 19th Street.
Officer Love arrived while Officer Kelly was handcuffing the juvenile. He left to look for defendant on 19th Street. He noticed a man wearing a white t-shirt and red hat stooped over in a yard with tall bushes and grass. Officer Love arrested him.
Officer Kelly retrieved the gun, and Officer Marino, who came to assist Kelly, retrieved the white jacket. At the time of their arrest, defendant and the juvenile had about twenty-three dollars in cash. Although the officers looked, they did not find additional cash in the area.
Officer Zepeda, who had gone to the scene of the crime to interview the victims, took Pichaya and Dominquez to the spot where the suspects were detained. They identified defendant and the juvenile. Neither of the victims was able to identify defendant at the time of trial, but both acknowledged their out- of-court identifications and both identified the shotgun recovered by Officer Kelly.
Sergeant Gaines, a ballistics expert employed by the Essex County Sheriff's Office, tested the shotgun and determined that it was operable. The barrel of the shotgun is seven and three-quarters inches long and the gun's total length is fourteen and one-half inches, sufficiently short to qualify the firearm as a "sawed-off shotgun," N.J.S.A. 2C:39-1o.
Defendant elected not to testify or present any witnesses.
During deliberations, the jury requested "a read back or playback of Pichaya's testimony." Because the courtroom is equipped with a video-recording system, the judge determined that it was appropriate to respond to the request by playing the portion of the videotape that contained Pichaya's testimony. The judge arranged for the jurors to see and hear the video in the courtroom and in the presence of the judge, the prosecutor, defense counsel and defendant. In making that ruling, the judge noted that the videotape was the official court record. He also determined that because the defendant had not presented any witnesses, there was no risk that the replaying of the ...