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State v. Pinckney

June 30, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BARRY PINCKNEY A/K/A BARRY PICKNEY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-03-0266.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 8, 2010

Before Judges Grall and LeWinn.

Defendant Barry Pinckney appeals from a judgment of conviction and sentence. He and his co-defendant David I. Rogers were tried to a jury on charges arising from a robbery committed in a parking lot in Union. The jury found defendant guilty of first-degree robbery, N.J.S.A. 2C:15-1, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The judge merged defendant's convictions; found one aggravating factor, the need to deter, N.J.S.A. 2C:44-1a(9), and no mitigating factors; and sentenced defendant to a term of eleven years on his conviction for first-degree robbery. That sentence is subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. For the reasons set forth below, we conclude that the arguments presented on appeal do not warrant reversal of defendant's convictions or modification of his sentence.

On December 20, 2005, Robert Bantang left his office in Union at about 1:30 a.m. As he loaded files into his car, a man he later identified as defendant rushed up and pushed him against it. Defendant held his hands in his pockets, pointed as if he had a weapon and demanded that Bantang give him money. Bantang surrendered approximately $600 - two $100 bills, six $20 bills, five $50 bills, one $10 bill and one $5 bill.

When defendant reached out to grab the money, Bantang realized that he did not have a weapon in that hand, but as defendant pulled his other hand out of his pocket, Bantang saw that he had a knife. Defendant grabbed Bantang's shirt and said, "You are coming with me." Defendant then dragged Bantang to the side of the building, sat on top of him with his knee on his back and pressed the knife against him.

During the struggle, defendant's hood moved and Bantang saw his face. Defendant directed, "Don't look at me.... Stop looking at me." Bantang focused on defendant's hands and feet and managed to free himself.

Defendant ran, but Bantang was able to follow without losing sight of him. He saw defendant jump into the rear of a Ford Explorer on the driver's side. There was a larger man in the driver's seat and someone else in the front passenger's seat.

Bantang got into his own car, followed and called 911. He described the car as a red Explorer but did not provide a license plate number. According to Bantang, he is red/green colorblind.

Officer Daniel Mitchell of the Union Police Department heard a dispatch about a robbery in the area and headed toward the area. The driver of the Explorer went through a traffic signal and made a right turn at a high rate of speed. Mitchell activated his lights and sirens, and Bantang abandoned his pursuit to return to his office and secure the papers that he dropped during the robbery.

Mitchell followed the Explorer. He too saw that there were three people inside. He noticed an exchange between the front-and back-seat passengers, after which the Explorer slowed to a "crawl" and the front-seat passenger left carrying something shiny. The passenger got out and ran toward a gas station. Next, the Explorer took off and Mitchell resumed the chase. The driver went through three red lights and a stop sign before he lost control while attempting a sharp turn and drove onto the sidewalk and into a telephone pole.

Mitchell tried to block the car, but the driver reversed direction and rammed into the patrol car. Other officers joined in the pursuit, which ended when the Explorer crashed at the entrance to Route 78.

Officers Robert Donnelly and Pietro DiGena approached the Explorer with their guns drawn; defendant was removed from the car and arrested. Donnelly described the driver as a "heavy-set African American male" and, in court, identified co-defendant Rogers as the person who drove the ...


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