On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-11-1563.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted on September 30, 2009
Before Judges Fuentes and Simonelli.
A jury convicted defendant James S. Russell of three counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of second-degree burglary, N.J.S.A. 2C:18-2. After the denial of defendant's motion for a new trial, the trial judge sentenced him to three concurrent eighteen-year terms of imprisonment with eighty-five percent periods of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. At sentencing, defendant also pled guilty to violating probation (VOP) on two unrelated offenses committed in 2003 and 2004, and was sentenced to two concurrent four-year terms of imprisonment consecutive to his eighteen-year sentences.
We gather the following facts from the record developed before the trial court.
On the evening of July 23, 2004, two assailants accosted Tyshaun and Antowan Fitzpatrick outside their home, forced them into the home at gunpoint, and bound them while ransacking and robbing the home. One of the assailants, later identified as co-defendant Shaquill B. Allah, put a bag over the head of Ebony Fitzpatrick, who had been asleep in the bedroom when Allah entered the home. Tyshaun was stabbed in the back during the robbery.
Three other individuals, one of whom brandished a gun, had approached Tyshaunda Fitzpatrick, who while sitting in a car outside the home saw what was happening to her brothers, and ordered her to remain quiet. In a taped statement given to the police shortly after the robbery, Tyshaunda identified defendant as one of those individuals.
In her taped statement also given to the police shortly after the robbery, Ebony identified Allah as the assailant who put the black plastic bag over her head. Ebony also said that she knew that defendant, who she identified by his first name and nickname, was involved in the robbery because Tyshaunda saw his face.
At trial, Ebony and Tyshaunda, who appeared pursuant to a subpoena, expressed their reluctance to testify. Ebony denied any recollection of the robbery. She recalled giving the statement; however, she denied memory of what she said and denied that the statement refreshed her recollection. Tyshaunda denied recollection of certain parts of the robbery, including the identity of the individuals involved and whether they had a gun. She, too, recalled giving the statement but denied it refreshed her recollection. Over defense counsel's objection, the trial judge permitted the State to read into the record, as past recollection recorded pursuant to N.J.R.E. 803(c)(5), Ebony's entire statement and those portions of Tyshaunda's statement that she could not recall. All defense counsel cross-examined these witnesses.
Against these facts, defendant raises the following arguments on appeal:
Point I. THE TRIAL COURT'S ADMISSION OF HEARSAY STATEMENTS DENIED DEFENDANT A FAIR TRIAL
Point II. DEFENDANT WAS PREJUDICED BY THE TRIAL COURT'S REPEATED SUA SPONTE QUESTIONING OF WITNESSES
Point III. DEFENDANT WAS PREJUDICED BY THE TRIAL COURT'S RESPONSE TO THE ...