On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-08-00717.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Skillman and Simonelli.
A grand jury indicted defendant John Williams for second-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count two); third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count four). The charges stemmed from defendant's alleged assault and robbery of Gerson Jean-Marie in a McDonald's restaurant parking lot in Elizabeth.
A jury convicted defendant on counts two, three and four, and on the lesser included offense of simple assault on count one. The trial judge imposed an extended-term sentence of seven years with a forty-two month period of parole ineligibility on count two, a concurrent one hundred and eighty days on count one, a concurrent five years on count three, and a concurrent eighteen months on count four. The judge also imposed the appropriate assessments and penalty. This appeal followed.
We derive the following facts from the evidence presented at trial.
On May 5, 2007, Jean-Marie, a police officer with the Elizabeth Police Department, finished his shift at 9:00 p.m. and drove to McDonald's to meet his wife, their ten-month-old daughter and his wife's twenty-three-year-old daughter, Renee. He was wearing a t-shirt and navy blue police uniform pants. His uniform shirt, gun and badge were inside his car.
Jean-Marie parked his car next to Renee's and began transferring his daughter's car seat from Renee's car to his, while his wife stood by the rear bumper of his car holding their child. As Jean-Marie was securing the car seat he heard a man's voice, turned around and saw defendant standing directly in front of him, stating, "You have money for me?" After Jean-Marie responded that he had no money, defendant got an "angry look in his face" and aggressively continued to demand money. Jean-Marie denied he had money and instructed defendant to "get out of here." Defendant "took an aggressive step toward" Jean-Marie's wife and daughter, saying, "Hey, lady, give me some money." Jean-Marie intervened and ordered defendant to leave the area.
Defendant then punched Jean-Marie on the left cheek, took a step back, and began "bouncing back and forth in a fighting stance." Jean-Marie advised defendant that he was a police officer and that defendant was under arrest, to which defendant stated, "even the police can get some." Defendant charged toward Jean-Marie as the officer approached to arrest him. Jean-Marie tackled defendant to the ground, where the two struggled for a few seconds before defendant jumped to his feet and fled. Defendant was apprehended in a nearby warehouse by one of Jean-Marie's fellow police officers and placed under arrest.
Jean-Marie's wife heard Jean-Marie identify himself as a police officer and defendant's statement that "even the police can get some." Renee did not hear either of these statements.
It is against these facts that defendant raises the ...