On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-08-1865.
The opinion of the court was delivered by: Per Curium
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Reisner and Yannotti.
Following a joint jury trial with co-defendant Derrick Johnson, defendant Gary Sayers was convicted of five counts of first degree robbery, N.J.S.A. 2C:15-1; one count of second degree burglary, N.J.S.A. 2C:18-2; five counts of third degree criminal restraint, N.J.S.A. 2C:13-2; five counts of fourth degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4); three counts of second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); three counts of third degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-5b; and three counts of third degree unlawful possession of a handgun, N.J.S.A. 2C:29-5(b). Shortly thereafter, the judge convicted defendant of second degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. The judge granted the State's motion for extended term sentencing and imposed concurrent terms aggregating fifty years with a NERA*fn1 parole disqualifier to run consecutive to two ten-year terms with five-year parole disqualifiers for the convictions of possession of a weapon by a convicted felon and second degree burglary.
This is a summary of the proofs. At 11:00 p.m. on June 22, 2006, the T.G.I. Friday's restaurant in Somers Point closed. About twenty minutes later, only five employees remained: Eric Yaeger, William McCamy, Eugenia Juarez, Brian Katinas, and Shawn Brown. Katinas dragged several garbage cans from the kitchen out to the dumpster, leaving one to prop open the back door. He was confronted by a masked man pointing a gun at him. A second masked, armed man stood nearby. The first gunman ordered Katinas to tell him how many people were left in the building and where they were located. Katinas did so. The masked men brought Katinas inside at gunpoint to the dry goods storage area. Along the way he encountered Juarez and Brown. They were also escorted to the storage area. By the time they reached the storage area, a third masked gunman joined them. McCamy noticed the gunmen approaching and alerted Yaeger, who was busy tending to the cash drawer. The first gunman then followed McCamy back toward the storage area at gunpoint, while the second gunman emptied the cash drawer and demanded that Yaeger bring him to the safe in the office. The first gunman told the third gunman to shoot McCamy, but after an interruption from Brown, decided instead to rob McCamy, along with Juarez and Katinas, taking cell phones and money from their pockets. He then produced a roll of duct tape and ordered McCamy to bind everyone else's hands.
Meanwhile, the second gunman followed Yaeger to the office. Once there, Yaeger emptied the safe and handed over the contents. The gunman then ordered him to empty the bottom part of the safe, where money already prepared for deposit is dropped. Initially, when Yaeger told him that he could not access that part of the safe, the gunman "jabbed [him] in the back of the head with the pistol and told [him] to open the [f***ing] safe." Soon, though, he accepted Yaeger's explanation that the only key was held by an armored guard that picked up the contents twice weekly, and directed Yaeger back to the storage area.
The gunmen promptly herded everyone into the beer cooler and told them to stay put. Unknown to the gunmen, the cooler had a faulty lock. The employees waited a short time to ensure the robbers had left before escaping and calling the police.
Steven McGuire, the third gunman, eventually turned himself in and identified defendant and Johnson as his cohorts. Both were arrested. A search of defendant's apartment revealed two woolen masks, a black hoodie, and nine gloves. McGuire testified for the State pursuant to a plea agreement.
Deborah Elliot, defendant's ex-girlfriend, who lived in New Hampshire, testified that defendant owned a small silver revolver that matched the description of that used by the second gunman. Shortly before the robbery, defendant and Elliot broke up. Defendant took the gun with him. Elliot overheard a telephone conversation between defendant and Johnson before he left her house for New Jersey. Defendant told Johnson that he had a gun and asked Johnson "what he had," and said that when he returned to Atlantic City, they were "going to roll." Elliot saw defendant again in New Hampshire on several occasions shortly after the robbery. Defendant was often accompanied by McGuire or Johnson. He appeared nervous and mentioned trouble with the police.
Johnson's fiancé testified as an alibi witness for him. At the conclusion of the trial, defendant and Johnson were convicted of different charges.
Defendant appeals, contending:
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (Not Raised Below).
Near the beginning of his summation, the prosecutor argued:
Maybe Deborah Elliot and Steven McGuire got together and conspired to set up [defendant]. That's the kind of stuff the defense wants you to believe because Steven McGuire is such a master mind. He's such a genius. That's how [defendant's counsel] wants to portray him. He sets it up so far back to set these two guys up and this is what he's going to do and as should be in a [S]uperman or [B]atman movie. He's going to come here and try and help these guys. That's what he's doing. Where does the nonsense come from? It's an argument that a lawyer makes in trial, trying to help him. These are the guys who did the robbery.... Trying to help them?
Defense argues that the only evidence that the State has to prove that these two [d]efendants are guilty is the testimony of Steven McGuire. That's all. They have to argue that. That's what they want to convince you. That's why they gloss over all the other important evidence....
There's a mountain of circumstantial evidence that... independently establishes these [d]efendants are guilty. (Emphasis added).
The prosecutor subsequently warned the jury that it should not rely on "what [defendant's counsel] conjure[d] up" to attack McGuire's credibility, and that counsel was "try[ing] to distract [them] from getting to the truth" when he pointed out inconsistencies in evidence regarding defendant's height. Further, the prosecutor characterized several of defense counsel's arguments as "nonsense," the ...