On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-05-0701.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Yannotti and Chambers.
Defendant, convicted of one count of first-degree robbery and one count of second degree robbery, N.J.S.A. 2C:15-1b, was sentenced to life in prison without parole under the Persistent Offender Accountability Act (Three Strikes Law), N.J.S.A. 2C:43-7.1a, based on his two prior convictions for first degree robbery.
We summarize the most pertinent evidence. Sandip Kapadia, the owner of Village Stationery, a convenience store located in Clifton, New Jersey, testified that he opened the store at about 5:30 a.m. on January 17, 2004. Richard Hyle and Joseph Szczepanik, who were both frequent customers of the store, entered shortly thereafter. Also present was an elderly woman who Kapadia believed had impaired cognitive functions. There was approximately $250 of cash in the store that morning.
At about 6:30 a.m., a black male approximately six feet tall entered the store. The man was wearing a dark colored hooded jacket, which was covering his face and he wrapped the collar around his mouth. The man first approached the woman and said, "give me the money." Kapadia did not see the exchange between the suspect and the woman, but he saw the woman walk out of the store. The man then approached Kapadia at the store counter and said, "give me the f**kin' money; I have a gun; I'm going to shoot your f**king a**." Kapadia stated that he gave him whatever money was in the store. None of the witnesses saw the gun.
Kapadia testified that the gun was covered by the defendant's clothes. Kapadia reenacted the suspect's gesture, which was described by the trial court. Kapadia pulled the "sleeve of his shirt over the fist of his hand so that his fist [was] inside the sleeve." At one point, the suspect pointed his hand at Kapadia while stating that he had a gun. Hyle testified that the suspect "came in with his hand over his thing. He says this is a holdup; I have a gun . . . he had his sleeve over it, covered like this, hidden." Hyle indicated that the motion was made with the suspect's left hand. Szczepanik testified that he could not see the gun, but the suspect, "had his hand over his . . . head. And he had a coat. . . . You couldn't see . . . anything like that . . . ." He also believed that the weapon was in the suspect's left hand.
Hyle testified that as the incident progressed, he tried to leave the store, but the suspect approached him and said, "I want your money." Hyle, who was eighty-two years old, refused to comply. The suspect struck him in the face knocking him unconscious. The suspect then fled through the store's sole entrance.
Officers Michael Bienkowski and John Klementovich responded to the call at Stationery Village for an armed robbery in progress. When the officers arrived, Hyle was lying on the floor bleeding from the nose area. The officers secured the scene and obtained a description of the suspect from Kapadia.
Nearby, Officer Peter Turano responded to a call near the off ramp for Broad St. on Route 19 North. When he arrived he saw a vehicle facing the wrong way on the exit ramp. The engine was turned on and no one was inside the car. Turano discovered that the vehicle was reported stolen.*fn1 He also discovered that a jacket in the front seat of the car matched the description of clothing worn in a nearby robbery.
Philip Casasanta of the canine unit also responded to the area of the car crash. A dog was dispatched. The dog circled the surrounding area and detected the suspect hiding behind a bush approximately forty-five or fifty yards from the car. Detective John Sloth placed the suspect, who was identified as Michael Stuart, under arrest and advised him of his Miranda*fn2 rights. Stuart responded that he understood his rights. The suspect was complaining of injuries to his ankle and wrist. Based on his injuries, Stuart was transported via ambulance to the hospital.
Officer Stephen Berge, who accompanied Stuart in the ambulance to the hospital, first performed a pat-down search of Stuart. The officer reported observing "assorted currency hanging out of [Stuart's] pocket." The officer pressed the money back into Stuart's pocket and Stuart replied, "that's all of it." Berge immediately read Stuart his Miranda rights and then proceeded to inquire into what he meant by his statement. Stuart replied that "he knows he is f***ked because he's on parole."*fn3 He also informed the officer "that he obtained the cash by robbing an old man." The police eventually seized $250 from Stuart.
Officer Glenn Turba stayed with Stuart while he was in the emergency room and handcuffed to the gurney. Stuart told the officer, "I'm sorry for putting you guys out." The statement was unprompted. In response to the statement, Turba informed him that "there was no reason to apologize" and told him to "not move around too much on the bed." Stuart requested that the handcuffs be loosened because he was in a lot of pain. Turba refused to loosen the handcuffs in accordance with police procedures. Stuart stated that Turba should "be more sympathetic to his injuries . . . ." He continued, "if you had jumped off the side of the bridge and landed hard, you know, you would better understand . . . the bridge was pretty high and hitting the floor, it hurt."
During the trial, Turba testified about the remainder of his encounter with Stuart:
STATE: Did Mr. Stuart make any requests of you?
TURBA: Well, Mr. Stuart asked me at this point how the old man was.
STATE: What was your response?
TURBA: I stated that I didn't know what he was talking about.
STATE: Why didn't you know what he was talking about?
TURBA: I didn't know who was involved or what old man, 'cause I never got to the store.
STATE: Did Mr. Stuart continue to ramble?
TURBA: Well, he said, you know, the old man at the store, the one who attacked me, is he all right? And again I advised him that I didn't know. And then Mr. Stuart stated well, I guess he came after me, you know, for what I did to him, taking his money and all.
STATE: Now at this time he made a few statements to you and he's asked you questions. What did you do?
TURBA: At this point, I advised him that, you know he was given his Miranda warning, it would be in his best interest to exercise that right.
STATE: Did he exercise his right or make any further statements?
TURBA: He did go on at this point, you know? He was stripped of his clothing by the hospital employees 'cause they were prepping him. And I went though the clothing to make sure there was nothing else that may be related as far as evidence. And Mr. Stuart stated, you know, you already got all the money I took, that's it, there isn't anymore. And he said I had to stuff it into my pockets.
Detective Dan Dvorak interviewed Stuart on the evening following the incident. Dvorak recited Stuart's Miranda rights before be began the interview. Stuart indicated that he had pain in his leg and arm and that he had not been "given any pain medication as of yet at headquarters." During the interview, Stuart stated that he drove to the store in a car that he obtained in Paterson, New Jersey. He asked "the owner of the store to give him money," which the owner then did. Stuart denied ever intimating that he had a weapon or gun. Dvorak testified that when Stuart was informed that he was being charged with robbery at the convenience store, he had a surprised reaction, "stating that he had only asked for money." Stuart stated that he "short jabbed" (punched) an elderly man who was interfering in the incident. Stuart relayed that after the incident in the store, he intended to drive towards Paterson, but he became disoriented and got into a one car accident on a ramp coming from Route 19. Stuart fled the vehicle and jumped over a retaining wall and a railing, injuring his ankle and his arm.
At the beginning of the jury charge, Stuart interrupted the judge and continued the disruption, despite repeated warnings, until he was removed from the courtroom. The following is the exchange leading to his removal:
THE COURT: All right. Good afternoon, Everyone. Ladies and Gentlemen of the Jury - -
STUART: Excuse me, your Honor. Ladies and Gentlemen of the Jury, there is evidence here that hasn't been - -
PROSECUTOR: Judge, I object.
STUART: There is proof that - -
STUART: There is proof that I had a wallet. Right here, this is forged by policemen. This is forged by Clifton police officers to obtain my wallet. Please don't - - please don't find me guilty, please.
And this Public Defender told me to go f**k myself in 2005 in the bullpen area - -
THE COURT: Jurors, please go into the jury room.
THE COURT: OKAY, Mr. Stuart, here's the ...