On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-02-0121.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2011
Before Judges Parrillo, Yannotti and Skillman.
Defendant John Howard appeals from an order entered by the Law Division on August 18, 2009, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
Defendant was charged with first-degree robbery, N.J.S.A. 2C:15-1 (count one); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-7(b) (count four). Defendant was tried before a jury.
At the trial, the State presented evidence which established that on November 23, 2002, defendant walked into a liquor store on Route 22 in Union, New Jersey, which was owned and operated by Arvind Patel (Patel). According to Patel, defendant was wearing a green winter jacket with a hood, and a scarf that partially covered his face. Patel became nervous because he thought it was not cold enough for a person to be wearing a winter jacket and scarf.
Defendant asked if Patel was the owner of the store, and Patel said that he was. Defendant pulled out a gun, pointed it at Patel's chest and told him that he should "give up what you got." Patel became more nervous. He said that the gun appeared to be "like [a] toy gun."
Patel told the defendant that he was nervous because his wife also was behind the counter. Patel told him to shoot if he wanted to but there was a policeman "right behind" him. According to Patel, defendant became nervous and left the store.
Defendant ran through the parking lot and Patel ran after him. Patel's wife phoned the police.
Defendant crossed the road and went towards the entrance to the Garden State Parkway. Patel returned to the store, obtained his car keys, got into his car and went after defendant. Patel last saw defendant when he was walking away down a one-way street. Patel returned to the store.
Three police officers were there. Patel gave the officers a description of the suspect. Patel described him as a black male, about five feet eight or five feet nine inches tall, who was wearing a green, military-type jacket with a hood, a scarf and blue jeans. Patel testified that, as the suspect was leaving the store, the scarf dropped and he was able to see the suspect's face. He said the suspect was unshaven and had a "tiny mustache."
The officers transmitted the description by radio. After receiving the transmission, a police officer detained defendant as a possible suspect, and the police took Patel to the place where he was being held. Patel positively identified defendant as the person who had entered his store and pulled the gun on him. Nearby, the police found a BB gun and the hood from defendant's jacket.
The jury found defendant guilty on all counts. The trial court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3(a). The court merged count two with count one and sentenced defendant on count one to twenty-two years of incarceration. The court ordered that defendant serve eighty-five percent of that term before becoming eligible for parole, as required by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also merged count four with count three and sentenced defendant on count three to a concurrent eight-year term.
Defendant appealed from the judgment of conviction entered on June 11, 2004. He raised the following arguments:
INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS AND CIRCUMSTANCES SURROUNDING THE VICTIM'S IDENTIFICATION OF THE DEFENDANT, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)
THE DEFENDANT'S CONVICTION ON COUNT THREE, SECOND-DEGREE POSSESSION OF A WEAPON WITH THE INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER MERGES WITH THE DEFENDANT'S CONVICTIONS ON COUNT ONE, FIRST DEGREE ARMED ROBBERY, AND DEFENDANT'S CONVICTION ON COUNT TWO, FOURTH-DEGREE AGGRAVATED ASSAULT WITH A DEADLY WEAPON, ALSO MERGES WITH DEFENDANT'S CONVICTION ON COUNT ONE
THE DEFENDANT'S PERSISTENT OFFENDER SENTENCE OF [TWENTY-TWO] YEARS
WITH 85% PAROLE INELIGIBILITY ATTEMPTED ARMED ROBBERY*fn1
WITH A B-B GUN IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND