On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-00470.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 18, 2010 -- Decided: Before Judges C.L. Miniman and LeWinn.
Defendant Shamar Harris-Lee appeals from his convictions for first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; third-degree unlawful possession of a sawed-off shotgun, contrary to N.J.S.A. 2C:39-3b; and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. The unlawful-purpose conviction was merged into the robbery conviction, and defendant was sentenced to a term of fifteen years on the first-degree robbery subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent term of five years for the unlawful possession of a weapon. We affirm.
On December 11, 2004, Hany Elgendy was selling hot dogs from a cart on Broad Street in Newark. Around 2:30 p.m., defendant approached Elgendy, put his arm around Elgendy's neck, and demanded his money. At first, Elgendy refused to surrender his money. Defendant tightened his grip and opened a bag he was carrying to reveal an operable sawed-off shotgun. Defendant continued to fumble with the shotgun, trying to remove it from the bag. Elgendy ran from the scene. As he did so, he heard a loud noise, like a bomb, when defendant discharged the gun into the pavement beside Elgendy's cart. Elgendy hid under a car.
Newark Detective Miguel Arroyo was traveling north on Broad Street with two other officers when he heard the shotgun blast. They made a U-turn, exited the vehicle, and approached Elgendy's cart. Elgendy and bystanders identified defendant as the shooter. Defendant then ran into a stereo store on Broad Street, where he was arrested. Elgendy followed the police to the store, where he identified defendant as the man with the shotgun who tried to take his money. He also identified his money belt and cell phone, which were on the floor near defendant.
The store clerk, Felix Sanchez, observed defendant enter the store carrying a duffle bag followed by police officers, including Detective Arroyo. He saw defendant throw the duffle bag over the counter. Arroyo also said defendant threw a money pouch onto the floor. The police retrieved the shotgun and noted that "187 slob" was etched on it. Police officers later brought Elgendy to the police station, where he made a statement and identified a photograph of defendant as the man who robbed him.
During the trial of the matter, defense counsel cross-examined Arroyo about the etching on the gun, eliciting testimony that the designation was gang related. The judge intervened and called counsel to side bar to inquire why defense counsel was pursuing this line of questioning. Defense counsel explained that, when the prosecutor asked Arroyo whether S-1 in evidence was the firearm, he replied, "Yes." The prosecutor then asked him to "[t]ake it closer, make sure." Arroyo said, "That's it, I remember it, 1 8 7 slob on the shotgun." Defense counsel told the judge that he believed he had to make the inquiry about the etching because he did not want the jury to think he was "hiding anything because [defendant's] not in a gang." The judge commented that he was "opening something," and defense counsel replied:
I understand that, but she could have at least given him some kind of--said something to him in advance of it, that's a reference--I don't know if anybody on that jury has any knowledge, but I don't want them tying him to it, that's why I'm making that reference[.]
After some further colloquy, defense counsel stated that he wanted to ask Arroyo "whether or not he sought out whether or not my client was a member of a gang." Counsel recognized that the prosecutor had made no reference to gang membership, but he "want[ed] to make sure the jury knows that he's not a member of the gang. He's already referred to the number." Defense counsel then proceeded to ask Arroyo whether he investigated defendant's membership in a gang, and Arroyo replied, "No." The officer then testified that the number is a reference to a gang, but he never checked to ascertain whether defendant was a gang member.
After the remaining witnesses testified, the case was submitted to the jury, which returned its verdict of guilty on all three counts. This appeal followed.
Defendant raises the following issues for our consideration:
POINT ONE: THE TRIAL COURT ERRED IN FAILING TO DECLARE A MISTRIAL SUA ...