On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-05-0871.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Skillman and Espinosa.
Defendant appeals from his sentence and convictions for first-degree robbery, N.J.S.A. 2C:15-1; first-degree use of a juvenile to commit a criminal offense, N.J.S.A. 2C:24-9; second- degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, and weapons offenses. For the reasons that follow, we affirm his conviction and remand for resentencing.
Defendant's convictions arise from the armed robbery of Antonio De la Cruz on December 5, 2006. Both the victim and T.T., a juvenile who participated in the robbery, identified defendant and testified about his involvement in the robbery.
T.T. testified that she was hanging out at her aunt's house in Jersey City with another juvenile, L.G., and Dafne Abad that evening. At the time, T.T. was seventeen, L.G. was fifteen and Dafne was eighteen. The three of them wanted to get a bottle of liquor to drink. As they were walking to the liquor store, a car pulled up, driven by someone they did not know. T.T. identified defendant in court as the driver. He introduced himself as "T." Defendant drove the girls to the liquor store. As the girls were putting together the money to purchase the liquor, defendant started asking them questions - whether they were cops and if they were "wired." The girls replied that they were not and even pulled down their sweaters to show that they were not "wired." The girls gave defendant their money and he purchased two bottles of liquor for them. T.T. testified that she intended only to get the liquor and go home but the three girls eventually drove to West New York with defendant.
T.T testified that she had never seen a gun before that evening, when defendant pulled one out and showed it to the girls. He told them that he wanted to "go catch a trick," which T.T. understood to mean that he wanted to rob somebody. T.T. said that she was scared but did not know what to do.
In West New York, they walked down the street, with T.T. and L.G. on one side and Dafne and defendant on the other side of the street. They encountered De la Cruz and started to follow him. T.T. stated that Dafne and L.G. went up to him and "stuck him up." She and defendant were standing there, and then, defendant unzipped De la Cruz's jacket and told L.G. to go through his pockets. T.T. saw the gun a second time as Dafne pointed it at the victim and spoke to him in Spanish. They took his cell phone, his money and his iPod and then told the victim to leave. As they were returning to the car, they saw a police car with its lights activated and started running. Eventually, the four of them were found lying down on a residential porch. The police confiscated the gun and took them into custody. T.T. identified the gun and cell phone in evidence as the gun defendant had that evening and as the victim's cell phone.
De la Cruz testified that he was walking home from work at approximately 3:30 a.m. when he was confronted by two young women speaking to him in English. When he continued walking toward his house, they grabbed him by his arms. He struggled until he observed a man and realized that one of the women had a gun. At trial, De la Cruz identified defendant as the man who mugged him with the young women and identified the gun used in the robbery. De la Cruz stated that defendant unzipped his jacket and "checked [him] over." His wallet, camera, phone and iPod were taken.
After he was told to leave, De la Cruz went home, where his father contacted the police. Later that evening, the police arrived at the house, advised De la Cruz that they had detained four people who matched the description given by his father. At the police station, De la Cruz identified the four detainees as the people who robbed him.
Defendant neither testified nor offered any witnesses on his behalf at trial. The jury convicted him on all charges: armed robbery, N.J.S.A. 2C:15-1 (count one); employing a juvenile to commit a crime, N.J.S.A. 2C:24-9 (count two); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four); and conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (count six).*fn1 At sentencing, counts three and four were merged into count one. Defendant was sentenced on count one to twenty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to a concurrent term of ten years on count six, to a consecutive term of fifteen years on count two, and to appropriate fines and penalties.
In this appeal, defendant presents the following issues for ...