On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-06-2170.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Waugh.
Defendant Sterling Strauss appeals his conviction for carjacking, contrary to N.J.S.A. 2C:15-2, as well as the resulting sentence of incarceration for a term of twenty-two years, of which he was required to serve eighty-five percent prior to becoming eligible for parole. We affirm.
We discern the following facts and procedural history from the record on appeal.
At about 9:45 p.m. on October 18, 2006, Velma Williams and her daughter, Raymona Williams,*fn1 were seated in the front of Velma's Nissan Pathfinder adjacent to Velma's house in Newark. Velma's younger daughter was in the backseat.
Two men walked past the car. According to Raymona, one of the men was thin and the other was heavy, and both were dark-skinned and wearing dark clothing. According to Velma, one of the men was short and wore a dark "hoodie." She estimated that the shorter man was approximately five feet, five inches tall, and was the heavier of the two. She estimated the height of the other man to be five feet, six or seven inches.
After walking past, the men returned to the car. The man subsequently identified as Strauss yelled "Boo," which startled Velma and Raymona. He said: "Oh my God. I'm sorry. Did I scare you?" Velma responded that he had scared her. The man walked over to the driver's side, where he apologized again and said that he had thought Velma was his aunt.
As Velma was getting out of the car, the man held out his hand. She thought he wanted to shake hands, but then realized that he had a gun in his left hand. He said: "Get out the car and give me everything you have." She threw her car keys down, screamed, and ran from the car. Her daughters, also screaming, got out of the car and ran. The man jumped into the car and drove away.
By the time the Newark Police arrived at the scene, Velma's car had been in an accident. Prior to getting out, Velma had applied a brake lock, which made the car brakes nonfunctional and unable to stop the car. She identified the car as the police were taking her to the police station.
The following day, Raymona reviewed approximately 200 photographs, which had been computer generated on the basis of her description of a bald, black male, between thirty and forty years old, as the man who drove away with her mother's car. She picked out Strauss's picture and identified him as the carjacker. An officer who was not familiar with the case showed Velma a photo array of six pictures, including Strauss's, sequentially. Velma identified Strauss as the perpetrator. Both Velma and Raymona also identified Strauss while testifying.
On June 22, 2007, Strauss was indicted for carjacking and two related weapons offenses. He was tried before a jury on August 7 and 12, 2008. Although Velma testified that she saw a gun in Strauss's hand, Raymona testified that she did not see a gun. No gun was found in the car. In summation, defense counsel emphasized the lack of physical evidence to support the identifications, inconsistencies in the testimony, and the fact that only Velma testified about a gun. The jury found Strauss guilty of carjacking, but acquitted him of the weapons charges.
Strauss was sentenced on October 27, 2008. The sentencing range for first-degree carjacking is a period of incarceration between ten and thirty years, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The carjacking was Strauss's fifth indictable conviction. The judge found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), with no mitigating factors. He imposed a sentence of incarceration for twenty-two years, subject to NERA and five years of parole supervision upon release, plus the required penalties and assessments.