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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...