On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-12-1071.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2010
Before Judges A.A. Rodriguez, C.L. Miniman and LeWinn.
Following a jury trial, defendant Lorenzo Pernell Nash was convicted of second-degree robbery, N.J.S.A. 2C:15-1(a), and acquitted of possession of a weapon, N.J.S.A. 2C:39-5(b), and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39- 4(a)(1). Judge James C. Heimlich imposed a nine-year term subject to NERA.*fn1
Around noon on August 11, 2007, Michelle Kitson was having an argument with her boyfriend, Antalom Holston. During the argument, defendant, Holston's friend, approached and attempted to ease the tension. Although Kitson did not know defendant, she accepted his invitation to go for a walk to get cigarettes. En route, defendant stopped at an apartment building to purchase marijuana. Defendant knocked on the seller's door for a half an hour, while Kitson waited on a nearby landing between two flights of stairs.
Suddenly, defendant grabbed Kitson by the throat, turned her around and told her to take her jewelry off. As defendant took off her jewelry, Kitson saw "something that looked like a barrel of a gun," in defendant's shorts. As defendant fled downstairs, he threatened that if Kitson "told anybody, he'd kill [her]." After defendant left, Kitson "ran down the stairs and started screaming for . . . help."
Elizabeth Police Officers Michael Barros and Anthosius Mikros responded to Kitson's robbery call ten minutes later, at 8:30 p.m. They testified that Kitson appeared to have been "in some sort of struggle," and she told the officers that defendant had beaten and robbed her.
Kitson was unable to remember any details of the eight hours between meeting defendant around noon and the arrival of police at 8:30 p.m., except for the robbery. Although Kitson admitted to taking Trileptal and Cymbalta for her bipolar disorder on August 11, 2007, she blamed the trauma of the event for her memory loss.
The police located defendant later that evening when they responded to a fire alarm at a Prince Street apartment complex at 9:30 p.m. Recognizing that defendant fit the description that Kitson had given to police of her assailant, officers took defendant outside to search him. He had Kitson's jewelry in his possession. That same evening, Mikros drove Kitson to the scene where she positively identified defendant as her assailant.
After the prosecution rested, the judge conducted a Sands/Brunson*fn2 hearing to determine the admissibility of defendant's prior convictions. The State offered certified judgments of defendant's convictions for six offenses: (1) second-degree theft by deception in 2007; (2) second-degree theft by deception in 2006; (3) second-degree robbery in 2001; (4) possession of controlled dangerous substance in 1997; (5) third-degree possession of controlled dangerous substance in 1994; and (6) third-degree receiving stolen property in 1994.
The judge determined that the 2007, 2006 and 2001 convictions were admissible to impeach defendant's credibility. The 1997 and 1994 convictions were only admissible to demonstrate a "series of crimes through the years." The State would only be permitted to introduce the conviction, the degree of the crime and the sentence for each.
Defendant's testimony diverged considerably from Kitson's version of events. After meeting Kitson around noon, the pair went to 405 Westminster Street to "get high." After smoking crack cocaine, the two decided to buy more cocaine, heroin and marijuana. They bought the drugs and went to an acquaintance's apartment. There, they used narcotics and engaged in sexual intercourse. After running out of drugs, Kitson offered defendant her jewelry to pay for more drugs. He was purchasing these narcotics at the Prince Street apartment complex when the police arrested him after responding to the fire alarm.
During his direct examination, defendant testified as to his prior convictions. During cross-examination, the State asked only whether he "received [jail] time," for "some convictions in 2006 and 2007." The State did not ask any further questions about appellant's convictions.
To rebut defendant's testimony that Kitson was under the influence of crack cocaine on the day in question, the State offered the rebuttal testimony of officers Barros and Mikros. They explained that Kitson had not appeared under the influence when they responded to her robbery call. Defendant objected, contending that this information had already been elicited from Barros during the following portion of his direct testimony:
STATE: Did [Kitson] appear confused by the questions you were asking her?
STATE: Did she give you coherent, cogent answers to the questions ...