On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-09-1418.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and C.L. Miniman.
A jury found defendant Luis A. Rivera guilty of first degree armed robbery, contrary to N.J.S.A. 2C:15-1. Defendant was sentenced to life in prison with no eligibility for parole under the "Three Strikes Law," N.J.S.A. 2C:43-7.1.
On Saturday afternoon, May 27, 2006, Robert Witkowski and his wife, Joan, were on their way to a friend's house for a cook-out when they stopped at Raritan Liquors in Sayreville. They drove into the store parking lot in their minivan between 2:30 and 3:00 p.m. As they parked, Mrs. Witkowski noticed a man, who appeared to be very agitated, walking continuously back and forth in front of the store talking to himself. She noticed the man was wearing a tan baseball cap, a tan buttoned down shirt, and tan pants.
The Witkowskis ignored the man, entered the liquor store and made their purchase. The owner assisted Mr. Witkowski with placing the beer into the van.
Mr. Witkowski entered the driver's side of the car. Mrs. Witkowski sat in the passenger's side, but as she was about to close the door, the man in the tan outfit pulled the door open. He jumped in front of her, straddled her feet, pulled out a knife and demanded money. Mr. Witkowski, who had difficulty hearing, began to exit the van believing the intruder was asking for directions. The assailant then said, "Don't you move. You want her to die[?]" and kept moving the knife towards Mrs. Witkowski's throat. Mrs. Witkowski advised her husband that the man wanted money. Mr. Witkowski gave the man a $50 bill and the man left.
Mrs. Witkowski attempted unsuccessfully to call the police. Mr. Witkowski followed the man in their car as he ran down the street. When the man ran up an exit ramp from Routes 9 and 35, Mr. Witkowski ended the pursuit. The couple proceeded directly to a friend's house because the friend's son-in-law, Jason Mater, was a police officer. Shortly thereafter, Mater responded to his in-law's house and called the Sayreville Police Department. The Sayreville Police Department simultaneously dispatched several officers to investigate the crime and search for the assailant. The South Amboy Police Department aided in the search.
Sayreville Police Sergeant Mark Zambyrzycki was dispatched at approximately 3:36 p.m. to search for the assailant. He was looking for a well-spoken, clean-shaven Hispanic male wearing a baseball cap and a tan buttoned down shirt. Sgt. Zambyrzycki drove to the Circle Motor Lodge, approximately two miles from Raritan Liquors, about the same time that South Amboy Police Officer Jamie Norek arrived at the motel.
Norek stopped in the front parking lot of the establishment and observed a man climbing through the window of a room. The man, later identified as defendant, was Hispanic and wore tan pants and a white sleeveless shirt. Norek apprehended defendant, handcuffed him and frisked him. He found a $50 bill and one quarter. Sgt. Zambyrzycki soon learned from South Amboy officers that they had apprehended the robbery suspect.
After defendant was apprehended, Patrolman Wortley transported the Witkowskis from their friend's house to the motel to attempt to make an identification of the suspect. Sgt. Robert Lasko of the Sayreville Police Department testified that Mrs. Witkowski was too upset to even attempt to identify the suspect. Mr. Witkowski, however, identified the suspect as the robber from approximately twenty feet away.
Mr. Witkowski died on April 9, 2007. At trial, Sgt. Lasko testified that Mr. Witkowski was able to partially identify defendant at the motel on the day defendant was apprehended. Sgt. Lasko testified as follows:
Mr. Witkowski had stated they were the pants and the shoes the suspect was wearing and he resembled but the suspect had a buttoned down shirt and hat and the suspect didn't have it at the time and he couldn't be a hundred percent because the guy didn't have the shirt and hat. The shoes and the pants matched the general ...