On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-03-0367.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Ashrafi.
Defendant Kawan Bolt appeals from his conviction by a jury on charges of armed robbery, attempted theft, aggravated assault, and possession of a weapon for an unlawful purpose. He also appeals his sentence as excessive. We affirm.
The relevant facts were developed through the testimony of police officers and the victims of the robbery at trial and at a pretrial hearing to determine admissibility of defendant's statements to the police.
At about 9:00 p.m. on October 24, 2005, two masked men entered the Santana Deli on Brunswick Avenue in Trenton. The owner was sitting near the cash register and three employees were working in the store. One of the victims described the masks as appearing to be shirts pulled over the two men's faces.
The shorter masked man put a handgun to the head of the owner and demanded money. The taller man punched the owner. One of the employees grabbed at the shorter man's gun and a struggle ensued with the two robbers. The taller man fought the employee and punched him two times in the face. In the struggle, the loose masks of the two men fell off their faces. The owner and the employees recognized both robbers as frequent customers of the deli.
During the fight, the owner got hold of a small knife and stabbed the taller man near his right eye and in the left side of his abdomen. The two robbers fled the store without taking any money.
Using information that the owner had stabbed and wounded one of the robbers, Trenton police checked with local hospitals and learned that a man had come to the emergency room of St. Francis Hospital at about 9:30 p.m. with stab wounds above the eye and in his abdomen. Patrolman Ponticello was dispatched to the hospital. A nurse described the nature of the wounds to the officer and also told him that the man said he had been "jumped in South Trenton."
Officer Ponticello approached the man, who was defendant Bolt, as he was sitting on a hospital bed with a towel over his head. The officer asked what happened. Defendant repeated that he had been "jumped in South Trenton." Officer Ponticello contacted his headquarters and reported the information he had learned.
One of the employees of the deli was then brought to the hospital, and he identified defendant lying in the hospital bed by nodding his head and saying "si, si, si, si." Later that night, the victims identified the other robber through a photo array at the police station as co-defendant Victor Baylor.
Meanwhile at the hospital, Detective Crosby arrived to question defendant. He learned that defendant had signed in at the emergency room under the name Shamar Mason. He approached defendant, who was lying on a hospital bed, and he advised him of Miranda rights.*fn1 Regarding his injuries, defendant said that two Hispanic men had attempted to rob him and he had fought with them and was stabbed. Detective Crosby responded that he did not believe defendant, that he was lying, and that he would be questioned further at police headquarters.
As the detective started to leave the hospital room, defendant called him back and admitted he had lied about being the victim of a robbery. He said he had walked into the deli on Brunswick Avenue and saw that a robbery was taking place. He attempted to help the employees against the robber but was stabbed in the struggle. At the time defendant made those statements, the police had not told him they were investigating a robbery at that deli.
At the joint trial of defendant and Baylor, defendant testified and repeated his second statement, that he was attempting to aid the deli owner and employees against a robber when he was wounded. He claimed that he and one of the employees had reached for the robber's gun at the same time. He said that after being stabbed, he ran out of the deli and around the corner toward his neighborhood, where a woman gave him a ride to the hospital. Defendant also testified that he had been a regular customer of the deli for two years and that he was familiar with co-defendant Baylor.
The jury found defendant guilty of all four charges in the indictment: first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree attempted theft, N.J.S.A. 2C:5-1 and 2C:20-3a; fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.
At sentencing, the court merged all other charges into the count for first-degree armed robbery and sentenced defendant to twelve years' imprisonment, with eighty-five percent of the sentence to be served before eligibility for parole and five years of parole supervision, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed appropriate statutory money penalties.
On appeal, defendant makes the following arguments:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE ORAL STATEMENTS MADE BY HIM TO THE POLICE PURSUANT TO CUSTODIAL INTERROGATION WITHOUT HAVING BEEN ADVISED OF HIS MIRANDA WARNINGS, WHICH NECESSARILY TAINTED HIS ORAL STATEMENTS MADE IMMEDIATELY THEREAFTER AFTER HE WAS ADVISED OF HIS WARNING.
POINT II THE TRIAL COURT'S INDEPENDENT QUESTIONING OF THE DEFENDANT CAST ITSELF INTO THE ROLE OF AN ADVOCATE BY ESSENTIALLY PROJECTING ITS OWN DISBELIEF OF THE ...