On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-01-0069.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Sabatino.
Following a jury trial, defendant Nicholas Watson was convicted of four counts of first-degree armed robbery, N.J.S.A. 2C:15-1, three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, a single count of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and one count of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 2C:15-1. Defendant was found not guilty of felony murder, N.J.S.A. 2C:11-3(a)(3). After the trial court merged the second degree weapons convictions and the conspiracy conviction with their related armed-robbery convictions for sentencing purposes, it imposed two consecutive seventeen-year terms for two of the robberies, plus a consecutive five-year term for the two third-degree unlawful weapons offenses, which were made concurrent with one another. For the aggravated assault, the court sentenced defendant to a five-year term that was to run concurrently with the later of his two robbery sentences. Finally, the court sentenced defendant to seventeen-year terms for both of the remaining robbery convictions, but ordered these to "run concurrent with the other counts."
This brought defendant's aggregate incarceration period to thirty-nine years for all convictions combined. By operation of law, the thirty-four-year portion of the sentence for the two robberies is subject to an eighty-five percent parole ineligibility period under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.
The indictment arose out of a series of robberies that occurred in Clifton and Passaic on August 18, 2006. Defendant does not contest that the robberies may have occurred, but he denies any involvement in them.
According to the State's proofs at trial, defendant, Roland Lamont, Kimani Taylor, and Omar Tracey were all riding in a borrowed truck in the early morning hours of August 18, 2006. Defendant allegedly stated to his companions in the vehicle that they should "get some funds."
Consequently, at approximately 2:00 a.m., Taylor, who was driving the truck at the time, pulled over on or near Lexington Avenue in Passaic. Defendant, along with Lamont, then exited the truck while wearing masks and carrying guns. They confronted two pedestrians, Antonio Alvarao and his niece. The men stole Alvarao's phone and wallet, and then fled in the truck.
Shortly thereafter, Taylor pulled the truck up to the corner of Paulison and Howe Avenues in Passaic and Tracey and Lamont got out. While carrying guns, Tracy and Lamont stole a wallet from another pedestrian, Victor Garcia. They reentered the truck and drove off.
Taylor again pulled over the truck in Clifton, around a corner from where four people (Shawn Kaiser, George Montoya, Joshua Estrada, and Samantha Angelo) were standing in a residential driveway. Defendant, Tracey, and Lamont got out of the truck and walked around the corner to where the four individuals were standing. After two of the robbers pulled out guns, they then went through the pockets of the four individuals, removing their cell phones and wallets, and once again fled to the truck and drove away.
Finally, the group of robbers drove to a gas station in Passaic, located at the corner of Broadway and Van Houton Streets. Defendant, Tracey, and Lamont again got out of the truck. At this point, defendant and Lamont were carrying guns. The robbers instructed the gas station attendant, Gurbachan Singh, to give them money and get on the floor. After Singh refused to obey, defendant and Lamont shot him in the foot, leg and stomach. A bystander, Gersan Montalvo, who was leaving a night club across the street, heard the gunshots. Montalvo then observed a dark vehicle arrive and pick up several persons who ran out of the gas station. Montalvo went over to the gas station and found Singh lying on the floor with gunshot wounds.
Singh died a short time later at a local hospital. Investigators thereafter recovered two shell casings and two projectiles from the office inside the gas station, and ballistics reports confirmed that the bullets had been fired from two different guns.
Phone records from the stolen cell phones showed a series of phone calls to Rakema Nelson. Investigators spoke with Nelson, who identified Lamont, Taylor ...