On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-06-0850.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 22, 2010
Before Judges Lisa and Alvarez.
Defendant Ernest Housey was convicted by a jury of first-degree robbery, N.J.S.A. 2C:15-1 (counts one and two); fourth-degree aggravated assault by pointing of a firearm, N.J.S.A. 2C:12-1b(4) (count five); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count six); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count seven); third-degree unlawful possession of a firearm, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5b (count eight); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7b (count nine).*fn1
Counts three and four, also first-degree robberies, were dismissed by the State because the victims failed to appear at trial.
On June 1, 2007, defendant was sentenced on count one to an extended term as a persistent offender, N.J.S.A. 2C:44-3a, to thirty years subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. A consecutive ten-year sentence with five years of parole ineligibility was imposed on count nine. The remaining terms of imprisonment were all to be served concurrent to count one, namely, twenty years subject to NERA on count two, eighteen months with eighteen months of parole ineligibility on count five, five years subject to two and one-half years of parole ineligibility on count six, and five years subject to two and one-half years of parole ineligibility on count eight. Count seven was merged into counts one and two. Appropriate fines and penalties were also imposed. Defendant appeals and we affirm.
On December 23, 2004, defendant, known as "Chocolate," played cards for several hours with a group which included Arthur Pough, Lonnie Lee, and Louis Gilchrist. The location of the game was a neighborhood garage that operated as a clubhouse.
The following afternoon, December 24, Gilchrist and Lee were at the garage in the company of a fourth man, named Joseph Nichols, when defendant entered, displayed a gun, and said, "this is a stick-up." Everyone assumed it was a prank and told defendant to "stop playing around." Defendant laughed and said, "I was just joking." He pocketed the gun, sat down with the others, and left shortly thereafter.
At around 7:00 p.m. that same day, December 24, approximately twenty people were playing cards in the garage, including Pough, Lee, Gilchrist, and Nichols. While Pough was outside talking to, among others, a person known only as "Brenton," he looked up and saw two men approaching, whose faces were covered by ski masks. One pointed a gun at Brenton, and instructed him to say his name at the door so that the robbers could gain entry into the garage.
At that moment, Gilchrist walked out of the garage and saw the two masked men. The gun was turned to him, and he was told to back up. When he failed to respond quickly, he was hit in the face with the butt of the gun. The robbers went inside.
Pough immediately called 9-1-1 on his cell phone. As he waited for police across the street, he saw the men exit the garage, remove their masks and walk away. He followed, recognizing defendant as the person with whom he had played cards the night before for several hours. When police drove down the street, Pough saw defendant throw the gun into a field where it was later recovered. Pough gave a statement on December 28 and selected defendant's picture from a photo array on December 30. At trial, he identified defendant as the man holding the gun during the robbery.
Lee testified that when the masked men entered the garage, one said "this is a robbery. For real." Later in the trial, he testified that one of the men said "I'm for real this time." The robbers collected cash, valuables, and everyone's wallets, placed them in a bag and left. Lee recognized the person who wielded the gun during the robbery by his build and his clothing as defendant, whom he remembered from his visit to the garage earlier that day and whom he identified during the trial as the perpetrator.
Nichols also testified that the individual holding the gun had the same build and wore the same clothes as defendant had earlier in the day, and that the gun appeared to be the same one wielded during the seeming practical joke. Nichols reported that the men said that "it's a stick-up." He acknowledged that people in the garage had talked about the robbery the day ...