On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-11-3614.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
Following a jury trial, defendant Michael Fryar was convicted of armed robbery, N.J.S.A. 2C:15-1 (count one), third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count two), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(b) (count three) and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). Thereafter, defendant pleaded guilty to the sole count of a second indictment charging him with second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b)(1). Defendant appeals from the judgment of conviction, arguing the cumulative impact of the prosecutor's inappropriate remarks made during summation deprived him of a fair trial and asserting errors resulted in an illegal or excessive sentence. More specifically, defendant's argues:
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO EFFECTUATE VARIOUS MERGERS INVOLVING COUNT IV (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) INTO COUNT I (ARMED ROBBERY), COUNT II AGRAVATED ASSAULT) INTO COUNT I AND COUNT III (UNLAWFUL POSSESSION OF A WEAPON) INTO COUNT I OF INDICTMENT NO. 06-11-3616-I (POSSESSION OF A WEAPON BY A CONVICTED FELON) (NOT RAISED BELOW).
A. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IV CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT I CHARGING ARMED ROBBERY.
B. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT II CHARGING AGGRAVATED ASSAULT INTO COUNT I CHARGING ARMED ROBBERY.
C. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT III CHARGING UNLAWFUL POSSESSION OF A WEAPON INTO COUNT ONE OF INDICTMENT NO. 06-11-366-I CHARGING POSSESSION OF A WEAPON BY A CONVICTED FELON.
THE JUDGMENT OF CONVICTION MUST BE CORRECTED TO ACCURATELY REFLECT THE SENTENCE IMPOSED ON COUNT III.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Following our review of the arguments presented on appeal in light of the record and applicable legal standards, we affirm defendant's conviction and sentence, except for the sentence imposed on count four, which must be merged with count one. We remand to the trial court to correct this and one other error in the judgment of conviction.
Following an armed robbery and police chase on the streets of Newark, defendant was arrested and charged under Indictment No. 06-11-3614 with armed robbery, aggravated assault, and weapons offenses. Defendant was separately charged under Indictment No. 06-11-3646 with second-degree possession of a weapon by a convicted felon.
The facts relied upon by the jury supporting defendant's conviction are taken from trial testimony. On May 18, 2006, James Jackson was heading to the New Hope Baptist Church in Newark when he stopped and ate breakfast at the Central Diner, located at Norfolk Street and Central Avenue. He saw defendant inside the restaurant. Jackson had just cashed a check for $1000 and held several twenty dollar bills in his hand as he waited to pay for his breakfast. Jackson had the money and some personal papers in his possession.
Jackson then left the restaurant and walked down Dey Street towards the church. He was approached from behind by a man who grabbed his collar and wrestled him to the ground. The man told Jackson "this a robbery," removed a handgun from his belt, and began beating him on the back of the head. The attacker then pointed the handgun at Jackson firing two shots into the air. The gunshots attracted police, and the assailant fled after taking some of Jackson's personal papers and his ATM card.
Jackson described the gun used in the assault and stated his attacker was wearing "black pants and a white T-shirt." When asked, he could not confirm whether the man was wearing a "gray hooded jacket" police later recovered. After defendant was captured, Jackson saw him in police custody and identified him as his assailant.
On the morning in question, Newark Police Officer Tyrone Moore was on patrol when he heard what sounded like a "firecracker" and saw a bystander waving at him. Moore ran up Dey Street and was approximately "12 to 15 yards" away when he saw "an older male on the ground fighting a younger black male off of him. The black male had a gun in his hand swinging down at the head and face of the older male." Moore shouted "Newark Police" and "drop the gun." Defendant looked toward Moore, grabbed some of Jackson's papers, then fled. Officer Moore stated he got a clear view of the younger man's face.
Moore radioed the incident to the police station, "stopped and looked" at the victim, and "might have asked him was he okay," but he "kept it moving" and was "running after the suspect" because he "wasn't going to let him get away." According to Moore, defendant was wearing a "gray hoodie, blue long shorts, on the street called capri [pants] . . . . and white and red sneakers." Moore chased defendant all the way out to Central Avenue . . . and, then, . . . when we got to Central [defendant] faked left and went right . . . . At that point before we got to the corner there was a black female walking on the sidewalk . . . he got on the opposite side of the female and he no longer ran at that point. He basically used her as a shield between me and him.
Defendant left the officer's sight, entering a building on a street corner. Still in pursuit, Moore "scaled the wall of the building" and watched defendant "dip down into" a subway station. The officer radioed defendant's whereabouts to fellow policemen in the area and followed him into the subway station.
Moore lost sight of defendant at that point, then saw him "escalate back up the other side" of the subway platform. The officer retrieved defendant's discarded "hoodie." He then saw "something come over the railing" from the street level, which he described as "a black object," and which was later identified as a ...