July 27, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HERBERT BROWN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-06-0673.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Graves and J.N. Harris.
In a twenty-two count indictment, defendant Herbert Brown was charged with three armed robberies of small grocery stores in the City of Paterson on December 23, 26, and 27, 2005, and various other offenses. Passaic County Indictment No. 06-06-0673 charged defendant as follows: three counts of first-degree armed robbery in violation of N.J.S.A. 2C:15-1 (counts one, seven, and twelve); five counts of fourth-degree aggravated assault (pointing a firearm) in violation of N.J.S.A. 2C:12-1(b)(4) (counts two, three, eight, thirteen, and fourteen); three counts of second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) (counts four, nine, and fifteen); four counts of third-degree unlawful possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5(b) (counts five, ten, sixteen, and eighteen); four counts of second-degree possession of a handgun by a prohibited person in violation of N.J.S.A. 2C:39-7(b) (counts six, eleven, seventeen, and twenty-one); one count of third-degree receiving stolen property in violation of N.J.S.A. 2C:20-7 (count nineteen); one count of fourth-degree resisting arrest in violation of N.J.S.A. 2C:29-2(a)(3) (count twenty); and one count of third-degree hindering apprehension in violation of N.J.S.A. 2C:29-3(b)(4) (count twenty-two). Count three, charging defendant with fourth-degree aggravated assault, was dismissed on defendant's motion at the end of the State's case, but a jury found defendant guilty on the remaining charges.*fn1
At sentencing on June 8, 2007, the trial court noted the case involved three first-degree "armed robberies of bodega type stores with a firearm" and summarized "the facts that the jury accepted" as follows:
The State is correct in the way to describe this, this was three first[-]degree armed robberies of bodega type stores with a firearm. I think it's important, because of the serious nature of these charges, just to review the . . . facts. And these are the facts that the jury accepted. . . .
. . . [O]n December 23rd of 2005 Paterson Police were investigating a robbery that took place at 354 Market Street. Two victims there, Juan Gomez and Gerardo Ayala. And I had the opportunity to observe these victims during the course of the trial.
They said the suspect entered the store with a black, small automatic handgun, took approximately $100 cash from the register. The suspect then ran from Market Street and Summer Street towards Park Avenue. And they gave a complete description.
Then on December 26th, just three days later, another armed robbery occurred at 954 East 19th Street. And here the victim[s] [were] Francisco Reyes and [Karilyn] Reyes. Here the suspect held Mr. Reyes at gunpoint. At that time Mr. Reyes yelled out to his daughter, [Karilyn], to put the money in a [bag] because there was a hold-up. The suspect took approximately $300 in cash and fled the store.
One day later, on December 27th 2005, another armed robbery occurred at Aracena Grocery located at 34 Essex Street. The suspect held a gun to Miguel Lopez's head and he ordered Mr. Lopez to the floor. The suspect then ordered Jose Aracena to place the money in a bag. The suspect took approximately $700 in cash and then fled the store south on Madison Street.
And then on the 28th there was -- the investigation was very intense regarding these robberies. And this defendant was observed with a large group of males congregating in an area. They focused on him. He attempted to flee towards Park Avenue. He matched the description of the person who was wanted for the armed robberies. He was apprehended at that time.
Black handgun was found in his waistband.
On counts one and twelve (first-degree robberies), the court sentenced defendant to concurrent eighteen-year terms subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; on count seven (first-degree robbery), the court imposed a consecutive eighteen-year term subject to NERA; and on count six (second-degree possession of a handgun by a prohibited person), the court imposed a consecutive five-year term with five years of parole ineligibility. Concurrent sentences were imposed for the other offenses. Thus, defendant's aggregate sentence was forty-one years in prison, with thirty-six years subject to NERA, and an additional five-year period of parole ineligibility for possession of a handgun by a prohibited person.
On appeal, defendant presents the following arguments:
BECAUSE THE JOINDER OF ALL THREE ROBBERIES FOR TRIAL WAS OVERWHELMINGLY PREJUDICIAL AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL, HIS CONVICTIONS MUST BE REVERSED. (Not Raised Below.)
THE PROSECUTOR'S OPENING STATEMENT WAS SO OUTRAGEOUSLY IMPROPER AS TO IRREPARABLY TAINT THE OUTCOME OF THE TRIAL, REQUIRING REVERSAL. (Not Raised Below.)
THE PROCEDURE BY WHICH DEFENDANT WAS IDENTIFIED WAS SO IMPERMISSIBLY SUGGESTIVE AS TO CREATE A SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION, REQUIRING REVERSAL OF HIS CONVICTIONS.
IN SENTENCING DEFENDANT ON THIS ROBBERY SPREE, THE COURT ERRED IN FINDING AN INAPPLICABLE AGGRAVATING FACTOR AND IN REQUIRING THAT TERMS FOR TWO OF THE ROBBERIES BE SERVED CONSECUTIVELY TO EACH OTHER.
Based on our review of the record, the briefs, and the applicable law, we are satisfied that defendant's arguments pertaining to his convictions are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We remand, however, for resentencing.
On the night of December 23, 2005, Juan Gomez and Gerardo Ayala were working at Gomez's bodega on Market Street in Paterson when a man they later identified as defendant came into the store on two separate occasions. The first time he entered, he bought candy and left. When he returned, defendant pointed a gun at Gomez and demanded money. Gomez opened the cash register, and defendant took approximately $800. Gomez and Ayala both described the man who robbed the store to the police and, according to Gomez, he had a good view of the robber because he was in the store for two to three minutes, the store was well lit, and the man "had nothing on his face."
The second robbery occurred three days later, at approximately 6:45 p.m. on December 26, 2005, at a bodega that was approximately 275 yards from the first robbery location. Francisco Reyes and his daughter, Karilyn Reyes, a college student, were working in their family owned grocery store in downtown Paterson when a man they later identified as defendant, entered the store and ordered a sandwich. As Francisco began preparing the sandwich, defendant went behind the counter, pulled out a gun, and demanded money. Francisco told his daughter to put the money from the cash register into a bag and to give it to defendant. According to Karilyn, defendant was holding a gun to her father's neck, so she put approximately $300 to $350 into a bag and handed the bag to defendant.
Francisco and his daughter both testified that the store was well lit, and they provided the police with a description of the man who robbed them. They also gave the police the tape from a video surveillance system that was operating at the time of the robbery.
The third robbery occurred the following night, on December 27, 2005, at another small convenience store located about 100 feet from the first robbery. Miguel Lopez and Jose Aracena were working at the store when it was robbed by a man they later identified as defendant. According to Lopez, defendant purchased a sandwich and left the store. When defendant returned, he pointed a gun at Aracena and told him not to move. Defendant then pointed the gun at Lopez and told him to put the money in a bag. Lopez did as he was told and defendant left with approximately $600. The police arrived within minutes, and both men described the robber to the police.
As part of their investigation, the Paterson Police Department prepared a description of the suspected robber and distributed it among patrol officers within the department. The suspect was described as a black male "in his thirties, between five foot five and five foot eight. About 170 to 190 pounds. Clean shaven. Bald head with a mark or scar on his forehead. . . . Suspect was wearing a black jacket [and] blue jeans." The officers were also informed that the robberies occurred in the midtown section "around 17th [Avenue], Park Avenue, Market Street."
At about 9:15 p.m. on December 28, 2005, while Officer Robert Orozto and his partner were on routine patrol in downtown Paterson, he observed a large group of males "congregating on the corner, making the sidewalk impassable." Orozto testified he intended to issue summonses to the individuals for obstructing a public passageway, but when he approached the group, several individuals, including the defendant, fled on foot. Orozto noticed that one of the men fit the description of the robbery suspect and after a short chase, defendant complied with Orozto's command to stop and to put his hands in the air. When Orozto told defendant to turn around, he moved his right hand toward his waistband. At that point, Orozto rushed him, grabbed his hands and conducted a patdown for weapons. A loaded handgun was recovered from defendant's waist area.
Defendant was initially charged with unlawful possession of a weapon. However, because he matched the physical description of the robbery suspect, his photograph was part of the photo lineups that were viewed by the victims. All six of the robbery victims selected defendant's photo from photographic arrays, and each of the victims made an in-court identification of defendant. In addition, five of the six witnesses identified the handgun that was recovered from defendant.
Although defendant did not file a severance motion, he argues in his first point that reversal is required because "the joinder of all three robberies for trial was overwhelmingly prejudicial." We do not agree that the court's failure to sua sponte order three separate trials had the potential to cause an unjust result. R. 2:10-2. Rule 3:7-6 permits joinder of multiple charges in a single indictment "if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan."
In this case, defendant's use of the same handgun to rob three small convenience stores within the same neighborhood during a five-day period suggested a common plan or scheme to target similar victims, and the three robberies were sufficiently similar to warrant joinder. Even if the robberies were tried separately, evidence of the similar crimes would have been admissible as probative of defendant's motive, intent, plan, and identity under N.J.R.E. 404(b). Accordingly, the charges were properly joined. See State v. Pitts, 116 N.J. 580, 601-02 (1989) (noting that the potential prejudice from joinder of offenses is significantly lessened when "evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges"); State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983) ("[A] defendant will not suffer any more prejudice in a joint trial than he would in separate trials, because the evidence of the other alleged crimes would be admissible in any event under [N.J.R.E. 404(b)].").
In his next point, defendant contends the prosecutor's opening, which was not objected to, was inflammatory and unduly prejudicial. Defendant must demonstrate plain error under Rule 2:10-2 to prevail. Plain error is "error possessing a clear capacity to bring about an unjust result and which substantially prejudiced the defendant's fundamental right to have the jury fairly evaluate the merits of his defense." State v. Irving, 114 N.J. 427, 444 (1989) (citations omitted). In this case, defendant asserts that the prosecutor's repeated reference to "when is enough enough?" was "a call to arms" that requires reversal. On the other hand, the State argues that the prosecutor's opening "focused the jury's attention on the substantial evidence that the State expected to introduce at trial."
As this court has previously noted, a prosecutor's opening statement to the jury "should provide an outline or roadmap of the State's case. It should be limited to a general recital of what the State expects, in good faith, to prove by competent evidence." State v. Walden, 370 N.J. Super. 549, 558 (App. Div.) (quoting State v. Torres, 328 N.J. Super. 77, 83-84 (App. Div. 2000)), certif. denied, 182 N.J. 148 (2004). We have considered the prosecutor's statements in light of the State's proofs and the court's instructions to the jury, and we are satisfied the prosecutor's comments did not deprive defendant of a fair trial. See State v. Frost, 158 N.J. 76, 83 (1999) (to constitute reversible error, prosecutorial misconduct must be "so egregious that it deprived the defendant of a fair trial").
In his third point, defendant contends he is entitled to a new trial because the out-of-court identification procedures were so unduly suggestive that they created "a substantial likelihood of irreparable misidentification." Following a Wade*fn2 hearing, the trial court found "the Attorney General's Guidelines were properly followed" and the identification procedures utilized by the police were not impermissibly suggestive. The court's findings and credibility assessments regarding the out-of-court identification procedures are amply supported by the record and are binding on us. State v. Locurto, 157 N.J. 463, 474 (1999). Moreover, we conclude from our independent review of the record that the out-of-court identification procedures were reliable and properly admitted into evidence.
Lastly, defendant asserts the court failed to articulate reasons for imposing a consecutive eighteen-year term on count seven. See State v. Miller, 108 N.J. 112, 122 (1987) ("A statement of reasons is a necessary prerequisite for adequate appellate review of sentencing decisions."). We agree the court did not discuss the factors enumerated in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). Accordingly, we remand for reconsideration of the sentence on count seven. The court must evaluate and analyze all of the Yarbough guidelines and determine their applicability in the circumstances of this case, in determining the appropriate length of the sentence on count seven, and whether it should be served consecutively or concurrently.
Defendant also argues that the sentencing court erred in finding aggravating factor two. N.J.S.A. 2C:44-1(a)(2) states that "[t]he gravity and seriousness of harm inflicted on the victim" may be considered as an aggravating factor in determining a sentence. In applying this factor to defendant, and in weighing the aggravating and mitigating factors, the court stated:
So we have the . . . need to deter. We have his prior record. He has a juvenile record that goes back to '96, conspiracy to distribute CDS. He violated his probation on that. Then he had a carjacking referred for adult disposition, which later on in 1997 he received ten years with five before parole. Possession of a firearm for an unlawful purpose. So he has this prior offense which is of a violent nature with the use of a handgun. That was in '97. And then this string of robberies, again, violent nature, use of a handgun.
So there's [a] very, very strong need to deter. The Court also finds in this case the victims were particularly vulnerable and the harm on these victims was substantial.
To have these guns pointed in their face and even held to their heads. Those are the aggravating factors. Mitigating factors, there are none. The Court finds that the aggravating factors overwhelmingly outweigh the mitigating factors.
Thus, the court did not explain why the victims were "particularly vulnerable," or why it found that defendant had caused substantial harm by pointing a gun at the victims. Moreover, none of the victims sustained any injuries, and the use of the gun elevated the robbery from a second-degree offense to a first-degree crime. N.J.S.A. 2C:15-1(b). Under these circumstances, the court should not have again considered the use of the firearm as an aggravating factor. State v. Pillot, 115 N.J. 558, 564 (1989). See also State v. Kromphold, 162 N.J. 345, 353 (2000) ("[F]acts that established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence.").
Accordingly, the trial court must reconsider defendant's sentence on count seven within the entire framework of Yarbough, without weighing aggravating factor two in the balance. Of course, the focus should be on the fairness of the overall sentence. See State v. Natale, 184 N.J. 458, 488 (2005) ("The touchstone is that the sentence must be a reasonable one in light of all the relevant factors considered by the court.").
Except for defendant's sentence on count seven, we affirm. The matter is remanded for reconsideration of the sentence on count seven. We do not retain jurisdiction.