On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 93-10-1572.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Espinosa.
On the evening of October 12, 1992, a man (Ira, a fictitious name) was in a Fort Lee hotel for the purpose of having sexual relations with a fifteen-year old girl, who was accompanied by another woman, Tara (also a fictitious name).
During the evening, Tara left the room to sit in the vehicle in which the group arrived to listen to music. While there, Tara was approached by a woman carrying what she described as "two 25 automatics" and a man carrying a "big sawed off shotgun." The armed woman knocked on the vehicle's window and asked Tara for Ira's room number. When Tara said she did not know, the two assailants removed her from the front seat of the car, tied her hands behind her back, laid her down in the back seat, taped her ankles and put tape across her mouth; they removed ninety dollars from her wallet.
At approximately the same time, Ira and the fifteen-year old started out of their hotel room. While the door was open and before they departed, the armed assailants "rushed in and . . . pushed [Ira] on the bed face down." Ira noticed the man was holding a gun. The woman pushed Ira "on the bed and kind of straddled [him] with [his] face down and she said something like she is the police and [he] should just cooperate." But, as the woman began to tape his hands behind his back, Ira concluded she was not a police officer and started to struggle, at which point the man "took the gun and hit [him] with it in the head." The armed assailants then pushed Ira into the bathroom, took his wallet and fled. Police were called to the scene.
The following day, Ira received telephone calls from a woman whose voice sounded similar to the woman who robbed him the night before. The caller identified herself as a police officer and claimed to have videotapes of Ira engaged in lewd behavior; the caller stated that she was willing to exchange the videotapes for money. Ira contacted the police, who instructed that he meet the caller's demands. Ira told the caller he would leave $3,000 in a bag in a telephone booth at the hotel where he and Tara were robbed. The police set up surveillance and immediately arrested defendant after she removed the bag of money from the telephone booth.*fn1
At the police station, Tara and Ira were shown a photographic array. Ira could not make an identification, but Tara selected a photograph of defendant as the woman who robbed her.
Defendant was charged with three counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one, two and three), second-degree burglary, N.J.S.A. 2C:18-2 (count four), one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five), one count of third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count six), and one count of second-degree attempted extortion, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-5 (count nine).
Defendant did not appear for trial. Before she absconded, defendant visited Tara at her home and apologized for the robbery. She also asked Tara not to testify. Tara reported the incident to police.
Defendant was tried in absentia and convicted on all charges except one of the robbery counts (count three), which the State voluntarily dismissed. Defendant remained at large for more than eight years. She was finally apprehended in March 2005. At sentencing, the judge merged the two robbery convictions (counts one and two) with each other and the two weapons convictions (counts five and six) with each other, and sentenced defendant to ten-year concurrent prison terms on the merged robbery convictions, the burglary conviction, and the attempted extortion conviction, and a concurrent five-year prison term, with a three-year period of parole ineligibility, on the weapons conviction.
Defendant appealed, presenting the following arguments for our consideration:
I. THE DEFENDANT'S CONVICTION ON COUNTS ONE, TWO, FOUR AND FIVE MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY ON ...