On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-07-0691.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 18, 2009
Before Judges Cuff and C.L. Miniman.
A jury found defendant Emerson Colorado guilty of second degree robbery, N.J.S.A. 2C:15-1 (Count 2); third degree resisting arrest, N.J.S.A. 2C:29-2a (Count 3); fourth degree simple assault, 2C:12-1a (Count 4); fourth degree resisting arrest, N.J.S.A. 2C:29-2a (Count 5); and fourth degree obstruction of the administration of law, N.J.S.A. 2C:29-1 (Count 6). On Count 2, defendant was sentenced to a seven-year term of imprisonment with an 85% No Early Release Act (NERA)*fn1
period of parole ineligibility. On Count 3, defendant was sentenced to a five-year term of imprisonment, consecutive to Count 2. Count 4 merged with Count 5 and defendant was sentenced to a five-year term of imprisonment concurrent to Counts 2 and 3. On Count 6, defendant was sentenced to an eighteen-month period of imprisonment concurrent to Counts 2 and 3. The appropriate fees, penalties and assessments were also imposed.
Defendant's conviction arises from a street robbery of two men who had just left a bar. Jose Luis Sotelo, one of the victims, testified that three men approached him and Carlos Nunez. As they drew near, one of the men asked Nunez and him for a lighter. Once they got close, one of the men grabbed Sotelo from behind and another punched him in the neck, searched his pockets, and removed his cell phone and wallet. Sotelo also noticed that a third man pushed Nunez to the ground.
As Sotelo, Nunez and the three men scuffled, two plain clothes Elizabeth police officers, Officers Idrovo and De La Prida, noticed a group of men on the sidewalk. They observed one man restraining another in a "Full Nelson" wrestling position. The officers realized the encounter was more than innocent horseplay when they observed one man punch the restrained man (Sotelo), reach into his pockets and pull out his wallet.
The officers stopped their car and ran towards the scuffle. As they did so, both noticed another man (Nunez) on the ground being attacked by a third man and possibly a fourth man. They identified themselves as police officers by flashing their badges and yelling "stop" and "police." The assailants ran from the scene.
Officer Idrovo chased the man he observed punch Sotelo. As he did so, he saw the man discard the wallet taken from Sotelo. Officer De La Prida later retrieved the wallet. Idrovo caught the man he chased as he attempted to climb a fence. The apprehended man was identified as co-defendant Bruce P. BlancoReyes.
As the men scattered, Officer De La Prida grabbed the man closest to him, placed him under arrest and placed him in the unmarked police car. This man was identified as co-defendant Devonne D. Figueroa. Officer De La Prida testified that Figueroa was the man he observed restrain Sotelo. At trial, the officer also identified Sotelo as the man he observed being restrained by co-defendant Figueroa and punched by co-defendant Blanco-Reyes.
Once he placed Figueroa in the police car, Officer De La Prida chased the man who beat Nunez and took something from him. The assailant led the officer through an alleyway, over several fences, and into a construction yard, where the assailant tried to hide under a tarp. Officer De La Prida called for assistance. Two other officers arrived at the scene and eventually apprehended the assailant. However, in the course of doing so, the man, later identified as defendant, kicked Officer De La Prida and tried to release himself from the grasp of the officers. Once restrained, defendant was searched and $40 was found in a front pocket. Officer De La Prida recognized defendant as the man who had riffled Nunez's pockets and removed money from the wallet and placed it in his pocket.
A fourth suspect was never apprehended. At trial, Officers Idrovo and De La Prida testified that they believed four men were involved in the robbery of Sotelo and Nunez. In his statement to police, however, Sotelo reported that three men approached them, two attacked him and the third man attacked Nunez. Nunez also reported that three men approached them, two men attacked Sotelo, and a third man threw him to the ground and searched his pockets. Nunez was unable to describe the man who assaulted him. Sotelo was able to provide ...