On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0505.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010 - Decided
Before Judges Baxter and Koblitz.
Defendant Michael Travis Wallace was charged as the getaway driver in an armed robbery, in Union County Indictment No. 06-06-0505, with first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)*fn1 (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count four); fourth-degree aggravated assault by pointing a gun at the robbery victim, N.J.S.A. 2C:12-1(b)(4) (count five); and possession of a prohibited device, hollow-nosed bullets, N.J.S.A. 2C:39-3(f) (count six). Prior to trial, the State dismissed count four. Defendant's co-defendant, the individual who confronted the victim on the street, pled guilty and testified against defendant at trial. Defendant was convicted only of the lesser-included charge of second-degree robbery. He was acquitted on the remaining counts of the indictment.*fn2
Defendant was sentenced to seven years imprisonment with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The required fees were assessed, and defendant was required to furnish a DNA sample. Defendant argues on appeal that, given the weaknesses in his co-defendant's testimony, the court should have granted his motion for a judgment of acquittal at the end of the State's case and that his sentence was excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The undisputed facts are as follows. At 10:00 p.m. on April 12, 2006, the victim and his stepson returned from grocery shopping and began unloading their purchases from their car. The victim noticed a black four-door car pull up in the street. A male, later identified as co-defendant Kordel Thom, pulled a handgun on the victim, who gave the robber a wallet, credit card and cell phone. Thom grabbed the chain from the victim's neck, and when the victim grabbed Thom's gun, Thom pushed the victim to the ground. Thom opened the black car door and the victim heard the driver say, "come on - let's go," before the car sped off.
About thirteen minutes later, after the police arrived, the victim noticed the same black car pull around the corner and park at the end of the block. The black car backed up with its lights off and drove away with the police officers following. When the car was stopped, the police found defendant driving, Thom in the passenger seat and the victim's wallet and cell phone in the back seat. A .45 caliber handgun loaded with hollow point bullets protruded from underneath the front passenger seat. The victim and his stepson identified Thom as the robber and the black car as the get-away vehicle.
Thom testified at trial that he was addicted to crack and used crack four or six times every day for almost four years. He said on the night in question he used both crack and marijuana before meeting up with defendant. Although he remembered very little about his interaction with police that night, he said he lied to police when he was arrested. He did claim to remember that he committed the robbery with defendant, who was a friend from high school, and a third individual. He said they dropped off the third individual down the street from the robbery, which is why they returned to the scene so soon after the robbery. He testified that the robbery was the idea of the other two and that defendant furnished the gun. On cross-examination, he admitted giving different versions of the events at different times and that his memory was poor due to drug usage.
When arrested, Thom suggested to the police that he would cooperate if they "could do something for" him. He pled guilty prior to his testimony. Although originally offered a maximum sentence of thirteen years subject to NERA, after agreeing to testify against defendant, he was offered a maximum of ten years subject to NERA.
On appeal, defendant raises the following issues:
THE MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ...