On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-07-0688.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Grall, Messano and LeWinn.
Defendant Mark Thomas Bourne was tried to a jury on charges arising from the robbery of Carlos Cedeno and Edwin Diaz and the flight that followed. His co-defendant, Mark Williams, pled guilty prior to defendant's trial. A jury acquitted defendant of both charges of robbery, N.J.S.A. 2C:15-1; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4a. The jury found defendant guilty of two counts of fourth-degree theft of movable property with a value greater than $200 and less than $500, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:20-2b(3), which were submitted to the jury as lesser-included offenses of robbery; second-degree eluding by creating a risk of injury or death, N.J.S.A. 2C:29-2b; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. Defendant was sentenced to concurrent four-year terms of incarceration on two counts of theft in the third-degree, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:20-2b(2)(d); a consecutive eight-year term, subject to a two-year period of parole ineligibility, on eluding, and a concurrent one-year term for resisting arrest.*fn1
We reverse defendant's convictions for third-degree theft and remand. The judgment must be amended to reflect convictions for fourth-degree theft in conformity with the jury's verdict, and defendant must be sentenced accordingly. We otherwise affirm defendant's convictions and sentences.
In the early morning hours of September 11, 2002, Cedeno and Diaz parked their car on a well-lighted section of Elizabeth Avenue in Elizabeth. As they left their car, they were approached by two men - one about six feet tall and one about five feet and four inches tall - who demanded "everything" they had.
The shorter of the two stuck a gun into Diaz' mouth and said, "don't look at me." Diaz felt the gun's cold metal against his teeth. The man snatched the earrings off of Diaz' ears, ripped the chain from his neck, and took his cellphone, wallet, money, watch and a lighter.
The taller man approached Cedeno, who later described the perpetrator as being in his mid to late twenties and resembling "Lennox Louis" in skin color and hairstyle - braids wrapped up. The man grabbed Cedeno by the arm and demanded all of his money. When Cedeno took out his wallet to comply, the man grabbed it, took a pair of glasses from Cedeno, "yanked [Cedeno's] earrings out of [his] ears" and took a chain from around his neck. He also took Cedeno's cellphone and car keys. By Diaz' and Cedeno's estimates, the encounter lasted for a period between two and five minutes.
Cedeno stood face-to-face and about a foot away from the man who robbed him, and got a good look at the robber's face and what he was wearing during the incident. Although the man never showed or mentioned a weapon, from the way the man held his hand under his shirt, Cedeno thought he might have one.
After taking their victims' belongings, the men left in a burgundy-colored Expedition parked about twenty-five feet away. Neither Cedeno nor Diaz could say which man took the driver's seat, but Diaz got the license plate number of the car.
Shortly after the men left, Officer Brian Clancy drove by. Cedeno and Diaz flagged Clancy down, told him what happened, described the Expedition and gave him the license plate number.
Clancy relayed the description. Cedeno and Diaz stayed with Clancy in his patrol car while other officers looked for the Expedition.
Officer Michael Maulshagen spotted the car about eight blocks from the robbery scene. He took up pursuit and saw that something was thrown out of the passenger-side window.
In the meantime, Officer Ina Perez and her partner had attempted to block Madison Avenue with their patrol car. A large SUV speeding toward the patrol car passed around it.
Perez did not follow; instead, having heard a dispatch reporting that items were thrown from the car, she walked along Madison Avenue and found a black leather wallet containing Cedeno's identification and money.
Maulshagen continued his pursuit, which required him to reach a speed of eighty-five miles per hour to follow the Explorer through the streets of Elizabeth and then toward Newark by way of Routes 1 and 78. Although traffic was light, the driver of the Expedition weaved in and out of traffic. The pursuit ended on a dead-end street. Defendant leaped out of the driver-side door as the vehicle was still rolling and ran to a nearby backyard where he was apprehended. Williams was still in the front passenger seat of the Expedition when he was arrested. The rear window of the Expedition had been shot out during the chase, but there was no evidence as to who was responsible.
During the chase, Cedeno and Diaz heard the police dispatchers reporting that a car matching the description they gave had been spotted and followed and property that had been thrown out of the window had been ...