On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 96-05-0437.
The opinion of the court was delivered by: Waugh, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2011
Before Judges Carchman, Graves, and Waugh.
The opinion of the court was delivered by WAUGH, J.A.D.
Defendant James Pennington appeals the denial of his petition for post-conviction relief (PCR). We affirm as to all issues except the sentence, which we vacate and remand for resentencing consistent with this opinion.
We discern the following facts and procedural history from the record on appeal.
On August 6, 1993, Michael York and David Pomeroy were working at a restaurant in Toms River. York was the manager of the restaurant. At approximately 11:00 p.m., he asked Pomeroy, the kitchen manager, to walk with him to the bank next door to make a deposit. They left through the back of the restaurant and walked through a parking lot and row of trees toward the bank. According to York, the parking lot was well lit, "almost like daylight."
As they passed through the trees, Pennington approached. He was holding a silver revolver with a long barrel. He repeatedly told York and Pomeroy: "Give me the money." When York was an arm's length away from Pennington and could see his face, York handed him the money. Pennington then fled toward a "dark car" and left the area. York ran back to the restaurant, where he asked someone to call the police.
The following morning, York and Pomeroy went to the police station to meet with a sketch artist. They helped him create a composite sketch of the man who robbed them. The sketch depicted the man as wearing wire-rimmed glasses.
On August 10, Detective Sergeant Roger Kriney presented a photo array to York. None of pictures depicted men with eyeglasses. York identified Pennington as the man who robbed him. However, because Kriney thought York's identification appeared tentative, he did not ask York to sign the back of the photograph.
On August 12, Pomeroy went to the police station to view the photo array. Pomeroy told Kriney that he had not had any conversations with York about the array. Pomeroy identified Pennington as the man who robbed him and York.
On August 16, Kriney visited York at the restaurant. He showed York a photo array that did not contain Pennington's photo. York did not identify anyone from that array. Kriney next showed York an array containing Pennington's photo. York again identified him as the robber. York signed the photograph at that time.
After the robbery, Detective John Stillwell saw an alert bulletin from the Dover Township Police regarding a dark-colored Oldsmobile Toronado that was involved in the robbery. He remembered seeing a car and driver matching the description on the alert while he was on patrol the night before the robbery.
Stillwell informed Kriney that he had a "good look" at the driver of that vehicle. On August 16, Kriney showed Stillwell a photo array. Stillwell identified Pennington as the man he saw driving the dark Toronado the night before the robbery.
Pennington owned an Oldsmobile Toronado. When he was arrested, he had $1000 in cash in his possession. Pennington told Kriney that he had seen Fati Sekou with a handgun the day before and the night of the robbery. He further claimed that he allowed Sekou to borrow his Toronado in exchange for heroin and that he was in Sekou's motel room using heroin while Sekou was using the Toronado. When Sekou returned, according to Pennington, Sekou gave him the cash and more heroin.
On November 3, 1997, Pennington was convicted of first degree armed robbery, N.J.S.A. 2C:15-1 (count one), and second degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count two).*fn1 At sentencing on December 19, 1997, the trial judge merged the armed robbery conviction with the conspiracy conviction. He then sentenced Pennington to a discretionary extended term of life in prison with twenty-five years of parole ineligibility. He made the term consecutive to an extended-term life sentence Pennington was already serving. Although that offense was committed after the armed robbery involved in this appeal, it had been adjudicated and the sentence imposed prior to the conviction in this case.
Pennington appealed. We affirmed the conviction and sentence, State v. Pennington, No. A-6920-99 (App. Div. May 7, 2003), and the Supreme Court ...