On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-01-0013.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Parrillo, Yannotti and Espinosa.
Following a jury trial, defendant Wendell Pittman was found guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); first-degree using a juvenile to commit a criminal offense, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:24-9 (count three); first-degree armed robbery, N.J.S.A. 2C:15-1 (count four); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count five); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b) (count seven).*fn1 The trial court sentenced defendant to concurrent fifteen-year terms for the use of a juvenile to commit an offense and armed robbery, subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; concurrent seven-year terms for the aggravated assault and conspiracy; and a concurrent three-year term for unlawful possession of a weapon, for an aggregate fifteen-year term subject to NERA. Appropriate fees and penalties were also imposed. Defendant appeals and we affirm.
The crimes for which defendant was convicted were committed on the night of March 22, 2007. After attending an after-school basketball game together, defendant, Gregory Bates, Janelle Gaines and sixteen-year-old S.B. went to a restaurant on Throop Avenue in New Brunswick.*fn2 According to Gaines, who knew defendant as "Sheik," once outside the restaurant, Bates pulled out a gun, which defendant "snatched" while asking Bates "what the 'F' is you doing." At the same time, the group discussed robbing a cab driver. The plan was to pay the driver and, when the driver took out his wallet to make change, Bates and defendant would grab him while S.B. and Gaines stole the money.
In furtherance of this plan, between 8:30 p.m. and 9:00 p.m., one of the males called the cab company and cab driver Johnson Olowe was dispatched to 384 Remsen Avenue, New Brunswick, where he picked up the group.*fn3 Four of them got in the back seat, with defendant sitting directly behind the driver, according to Gaines. There was possibly a fifth member riding in the front passenger seat. In any event, Olowe was told to drive to a nearby Baptist church, but along the way the passengers changed their minds and told Olowe to go to Oak Leaf Drive in North Brunswick so they could collect money from a friend. Suspicious of the group, Olowe tried to engage them in conversation during the trip and attempted several times to turn on the cab's interior light to see their faces. Each time, however, they would turn the light off.
When the cab reached Oak Leaf Drive, one member of the group told Olowe to pull over to a darkened area, but Olowe refused, explaining that it was company policy to only drop passengers off in front of a house. In response, someone in the group began calling Olowe a "bitch" and a "monkey," at which point Olowe slowed the car to turn to see the face of the man behind him. When he turned, the passenger seated directly behind him shot him in the neck, causing the car to crash into a pole.
Once the shot rang out, the passengers in the cab fled the scene on foot. When police arrived, the scene was secured and first aid was administered to Olowe, who was bleeding from the back of the neck. Before he was rushed to the hospital, Olowe pointed in the direction to which his assailants had fled. The responding police then apprehended defendant, S.B., Bates and Tashiem Edwards in the area of How Lane, which Olowe had pointed out, near a Social Services building.
Defendant, Edwards, S.B., and Bates were taken to the hospital for a show-up before Olowe, who identified S.B. and Bates as passengers in the cab and Bates as the shooter. Olowe confirmed his identifications one week later. Edwards was later released. Although Olowe at first thought his cash fares, wallet and cell phone were stolen, it was later ascertained that he was mistaken as nothing had been taken from him during the incident.
The gun was never recovered. The bullet recovered from the scene was identified as from either a .22 or .25 caliber gun. A black bandana, like the one Bates said defendant had in his pocket during the incident, was found at the scene, although defendant's DNA was not recovered from it.
Bates gave a videotaped statement to the police claiming that the group of five plotted to rob a cab driver and that it was defendant who called for the cab, sat behind the driver wearing a hooded sweatshirt, pulled out a gun and shot the cab driver. When he jumped out of the cab, defendant dropped the gun and ran. Bates picked it up and gave it to someone, but does not know its whereabouts.
On July 17, 2007, Gaines also gave a videotaped statement to the prosecutor's office wherein he asserted that defendant brought the gun into the car, shot the driver and then fled with the rest of the group, throwing away the gun while he ran. Gaines also claimed that when he asked why the gun went off, defendant said that his finger was on the trigger and it just slipped. Defendant was arrested on August 18, 2007.
During a March 12, 2008 interview with an investigator from the Public Defender's Office, Gaines partially recanted his statement implicating defendant, claiming that he lied when he said that defendant was the shooter. Gaines, however, did not recant the portion of his statement that named defendant as one of the five members of the group who participated in the robbery. Gaines later recanted his initial recantation.
Defendant gave a recorded statement to the police in which he claimed to have been on his way to his brother's house, walking with his girlfriend, Brittany, past two other males near the Social Services building when one of them asked him for a cigarette. The police then stopped the trio, advised them that someone had been shot, and arrested them for the shooting. Defendant denied knowing either of these males - Bates or S.B. - although he had seen them around the neighborhood. Defendant also denied that he was known by the name "Sheik."
S.B. testified for the defense that he was in the cab with "Hassan," Bates, "Jerome" and "Hot Fire," whose real name he did not know, and that neither defendant nor Gaines were present. According to S.B., Hot Fire planned the robbery and sat directly behind the cab driver with a gun. According to the plan, Hot Fire would put the gun to the back of the driver's head and Hassan would get the money. S.B. also claimed that he did not know defendant and that defendant was just walking by when Bates asked him for a cigarette. S.B. admitted that while incarcerated he wrote a letter to Bates telling him what to say to the police about the incident. S.B. eventually admitted that he knew Gaines.
Evidently crediting the State's version, the jury convicted defendant of armed robbery, among other offenses charged. On appeal, defendant raises the following issues:
I. DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; A REVERSAL IS REQUIRED.
A. TRIAL COUNSEL FAILED TO INFORM THE DEFENDANT THAT JANELLE GAINES HAD NOT RECANTED HIS ENTIRE TESTIMONY.
II. THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS, AND BY DENYING DEFENDANT'S MOTION FOR A MISTRIAL, DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED.
III. THE COURT FAILED TO CHARGE THE JURY TO NOT FORM AN OPINION OF GUILT DUE TO THE REPRESENTATION OF THE DEFENDANT BY THE OFFICE OF THE PUBLIC DEFENDER (NOT RAISED BELOW).
IV. THE TRIAL COURT ERRED BY ALLOWING THE TESTIMONY OF WITNESSES TO BE FIRST HEARD OUTSIDE THE PRESENCE OF THE JURY IN CONTRAVENTION OF DEFENDANT'S 6TH AMENDMENT RIGHTS.
V. THE TRIAL COURT ERRED BY PERMITTING TESTIMONY REGARDING THE CHARGES AND DISPOSITIONS OF THE CO-DEFENDANTS TO BE HEARD BY THE JURY (NOT RAISED BELOW).
VI. THE COURT ERRED BY ALLOWING STREET NAMES TO BE USED REFERRING TO THE DEFENDANT WHICH WAS ...