On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0596.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judge Graves and Messano.
Defendant Gino McCoy, a/k/a Geno McCoy, appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of first-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).*fn1 After merging the weapons offenses into the robbery conviction, the judge sentenced defendant to a twenty-year term of imprisonment, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was also sentenced to a concurrent ten-year prison term with an 85% period of parole ineligibility pursuant to NERA on the aggravated assault conviction.
Defendant raises the following issues on appeal:
MR. MCCOY WAS PREJUDICED BY VAGUE AND IRRELEVANT EVIDENCE THAT HE COMMITTED OTHER BAD ACTS, AND THE COURT PROVIDED AN INADEQUATE JURY INSTRUCTION, THEREBY DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL. (Partially Raised Below).
IN IMPOSING A 20-YEAR TERM OF IMPRISONMENT, WITH 85% PAROLE INELIGIBILITY, THE COURT CREATED A MANIFEST INJUSTICE. THE SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING.
In a separately-filed pro se brief, defendant raises the following points:
DISMISSAL OF INDICTMENT. THERE ARE NO ELEMENTS TO THE STATU[T]E OF THE CHARGES AND JOIN[D]ER OF SEPARATE OFFENSES IN THE INDICTMENT.
TRIAL JUDGE ERROR NOT TO INCLUDE A LESSER INCLUDED OFFENSE ON VERDICT SHEET AFTER GIVING INSTRUCTION TO CHARGE THE JURY.
INEFFECTIVE ASSISTANCE OF COUNSEL.
MR. MCCOY['S] SENTENCE WAS EXCESSIVE: WHERE A PLEA AGREEMENT WAS OFFER[ED] TO DEFENDANT OF 15 YRS. BUT WAS GIVEN 20 YRS. AFTER CONVICTION, PLUS 5 YRS. PAROLE SUPERVISION MADE IT AN ENHANCE[D] SENTENCE, AND NERA 85% WAS NOT MENTIONED IN INDICTMENT.
DISPARITY IN SENTENCE WAS UNJUSTIFIABLE AND SHOULD BE VACATED TO PROMOTE FAIRNESS AND CONFIDENCE IN EVENHANDED JUSTICE OF SYSTEM.
We have considered these arguments in light of the record and applicable legal standards. We reverse.
On October 1, 2004, at approximately 5:55 a.m., Joel Wolff, the owner of Wolff Brothers Dry Cleaners, Inc., in East Orange, arrived at his place of business. The premises included a small laundromat that was accessible by a separate door, in addition to the dry cleaning business that occupied the remainder. Wolff noticed two people standing at a nearby green, two-door car without a back window. Shortly thereafter, Wolff heard someone banging on the back door of the business. He saw a familiar-looking woman who was asking for change. Wolff motioned for her to come to the front entrance of the laundromat.
As Wolff gave the woman change, a person wearing a skeleton mask came through the entrance toward Wolff and struck him in the forehead with the blunt end of a hatchet, rendering Wolff unconscious. When he awoke, Wolff was behind the store counter with his assailant straddling him. Wolff struggled with the assailant who then punched Wolff above his right eye and again struck him with the hatchet.
The assailant secured a kitchen knife from the woman. As Wolff and the man struggled over the knife, the assailant ordered the woman to go to the store's safe and directed her toward it. At this point, Wolff realized that he "had heard . . . th[e] man before, th[e] inflection in the voice." When Wolff told the pair that he couldn't remember the combination to the safe, the woman took his wallet and both intruders ran away. Wolff called the police. When they arrived, Wolff provided them with a description of his assailants and a list of former employees that included defendant's name. Wolff was taken to the hospital and treated for his injuries.
About two weeks later, Wolff read an article in a local newspaper regarding the arrest in Metuchen of defendant and his then girlfriend, Mona Hill.*fn2 Wolff called Detective Pat Pasteur of the East Orange Police Department because the vehicle described in the article as being used by defendant and Hill matched that of the vehicle Wolff saw on the morning of the robbery. Wolff, however, could not identify defendant as one of the robbers.
Pasteur contacted Hill who came to police headquarters on November 23, 2004, and gave a statement regarding the robbery. Pasteur testified that defendant was then "picked up on some outstanding warrants" and interviewed at police headquarters. After waiving his Miranda*fn3 rights and executing a waiver form, defendant gave Pasteur a written statement in which he admitted his involvement in the robbery.
Hill testified as a witness for the State. She confirmed that she and defendant robbed Wolff after driving to the scene in a 1992 green Ford Probe with a broken rear window. On cross-examination, Hill admitted that she was never charged in connection with the robbery and that she was on probation for being convicted of possession of a controlled dangerous substance.
Defendant testified and denied participating in the robbery. He admitted being with Hill on that day, but claimed that he picked her up around 9:00 a.m. Defendant also claimed that he underwent hernia surgery in mid-September and was incapable of "vigorous physical fighting" on the day of the robbery. Defendant testified that although he voluntarily signed the Miranda rights form, he did not provide the answers contained in the written statement. Instead, he signed the individual pages of the statement without reading them because Pasteur told him that he would be released if he did.
The record reflects that the jury reached its verdict in less than two hours.