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State v. Tolbert

July 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK TOLBERT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-10-1043.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 23, 2010

Before Judges Carchman and Parrillo.

Defendant, Mark Tolbert, after a trial by jury, was convicted of two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of third-degree thefts by unlawful taking, N.J.S.A. 2C:20-3a; and one count of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. The trial judge, after appropriate mergers, imposed an aggregate term of twenty-five years imprisonment with an eighty-five percent disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the Graves Act, N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-3a.*fn1

Defendant appeals. We affirm.

The following facts are relevant to our consideration of defendant's appeal. On August 16, 2004, at approximately 12:00 a.m., Sekhou Cummings was in line waiting to enter the Sambucca Night Club in Trenton when defendant and co-defendant, Norman Murphy, approached him and asked him for five dollars; Cummings refused. The men repeated their request, and Cummings complied, handing them five dollars. The men, however, pressed Cummings for another five dollars. When Cummings attempted to walk away, Murphy pulled out a gun and pointed it at Cummings' chest. Defendant proceeded to take money and a cell phone from Cummings' pockets while Murphy yanked off a white-gold chain from Cummings' neck, which fell to the ground. While the men bent down to retrieve the chain, Cummings fled in the direction of his parked car where he saw a police car patrolling the area. He approached the car and advised Officer Israel Bonilla and Officer Sheffield*fn2, of the Trenton Police Department, that he had just been robbed by two black males wearing white t-shirts, one tall and thin and the other short and stocky. Cummings entered the patrol car and drove with the officers back toward the nightclub.

Shortly after Cummings was robbed, sometime between 12:00 and 12:15 a.m., Kenneth Radcliffe was walking through the Auto Zone parking lot in Trenton with three companions heading to the Sambucca Club. Defendant and Murphy approached Radcliffe, who described them as wearing white t-shirts, one short and stocky, and the other tall and thin. Defendant asked Radcliffe for five dollars, pulling up his shirt and displaying a gun tucked in the waistband of his pants, telling Radcliffe that he did not "want to have to paint [his] shirt red." Radcliffe attempted to walk away from defendant, but defendant pulled his gun from his waistband and pointed it at Radcliffe's chest. Radcliffe handed defendant forty dollars from his wallet; one of Radcliffe's friends also handed defendant ten dollars. Officers Bonilla and Sheffield, having been directed to that general area by Cummings, arrived at the scene.

When Cummings saw defendant and Murphy, he shouted "that's them, that's them". Bonilla then observed two men that fit the description provided by Cummings. The officers exited their vehicle and approached the two men, ordering defendant to show his hands. Defendant refused to comply, ran behind a car parked in the lot and appeared to be attempting to hide the gun behind the vehicle. Bonilla then arrested defendant, and Sheffield located a gun under the parked car. Bonilla searched defendant and found U.S. currency and a chain with a pendant in defendant's pocket. Sheffield, upon her search of Murphy following his arrest, retrieved a cell phone from him. Once defendant and Murphy were transported back to police headquarters, Cummings identified the chain and cell phone as the ones that were taken from him earlier that evening.

During trial, the jury heard testimony from Cummings, Radcliffe, Officer Bonilla and Murphy. Cummings, Radcliffe and Bonilla all identified defendant as the man who had committed the August 16 robberies. Defendant focused his defense on the theory of misidentification, noting certain inconsistencies in the description provided by Cummings such as failure to initially note that defendant had facial hair and stating that defendant was wearing long pants when Bonilla testified he was found wearing shorts.

While cross-examining Radcliffe, defense counsel inquired as to why his companions from the night of the robbery were not present in court. Radcliffe responded that as his friends were from Detroit he "did not want them coming back all those miles to come here for this.... They have a life to live. They're states away. Why have them come here for this?"

Defense counsel responded by pointing out that the State could have provided Radcliffe's companions with transportation to the trial. The judge then interjected:

And the comment about the Prosecutor's Office arranging the transportation here the Court will address that later. Applications can be made by both the State and the defendant in an attempt to get a witness here from another state. The fact is they aren't here and they're not testifying. Let's move on. The prosecutor has done nothing wrong in that respect.

[Defense Counsel]: Nor is anybody suggesting that, Your Honor. It's the witness who suggested he's here to ...


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