On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-05-0200.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Waugh.
Defendant Albert Dilts appeals his conviction for first-degree armed robbery and related offenses, as well as the resulting sentence. We affirm the conviction for third-degree burglary and reverse the remaining convictions.
We discern the following facts and procedural history from the record.
Gurnam Chand worked at a Kwik Trip gas station in Phillipsburg. At approximately 10:15 p.m. on February 16, 2008, Chand was the only employee on duty. As he prepared to close the station, a man approached him. According to Chand, the man, later identified as Dilts, demanded money and flashed a five to six inch long knife. Dilts grabbed the man's "shoulder with one hand and [held] the knife in [his] other hand." After struggling for approximately thirty seconds, Chand broke free and ran to the opposite side of the station. When the man went into the attendants' booth,*fn1 Chand called 9-1-1 from his cell phone.
At the time of the incident, Timothy Cumer and his girlfriend had just arrived at his mother's house, located approximately 500 feet from the gas station. Cumer heard yelling and saw "[a man] and the gas attendant pushing and arguing back and forth." He then saw the man enter the attendants' booth. When the man came out, he ran towards a car parked across the street from Cumer, who ran towards the man in an "attempt to stop him." The man "pushed" past Cumer and got into the passenger side of a green Acura Legend, which drove away. Chand, who witnessed the encounter between Cumer and the man, wrote down the Acura's license plate number.
Cumer ran back to his car. He and his girlfriend "gave chase" to the Acura.*fn2 When Cumer caught up with the vehicle, his girlfriend called 9-1-1 to provide the police with its description. Shortly thereafter, police officers from Phillipsburg and Greenwich Township stopped the Acura, which had two occupants. Dilts was the passenger, and Dorothy Elliot was the driver.*fn3 The license plate number on the Acura matched the number written down by Chand and by Cumer's girlfriend.
Cumer remained at the scene of the stop. He identified Dilts as the "same person that [he] confronted just across the street from [his] mom's house." Chand subsequently told police that Dilts "seemed like" the person who had attacked him.
In May 2008, a Warren County grand jury indicted Dilts for first-degree armed robbery, contrary to N.J.S.A. 2C:15-1(a)(2) (count one); second-degree robbery, contrary to N.J.S.A. 2C:15-1(a)(1) (count two); third-degree attempted theft from a person, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-3 (count three); third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count four); fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count five); third-degree burglary, contrary to N.J.S.A. 2C:18-2(a) (count six); and fourth-degree possession of a weapon by a convicted person, contrary to N.J.S.A. 2C:39-7(a) (count seven) (collectively, the first indictment).*fn4
The first six counts of the first indictment were tried before a jury over four days in April 2009. The jury found Dilts guilty of first-degree armed robbery, third-degree burglary, and the weapons offenses charged in counts four and five. It did not consider counts two and three, which charged lesser included offenses related to the first-degree robbery charged in count one. The same jury was subsequently asked to consider count seven, possession of a weapon by certain persons. It returned a verdict of guilty.
Dilts was sentenced on August 7, 2009. The judge imposed a sentence of incarceration for eighteen years on the first-degree armed robbery conviction, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Shorter sentences on the other charges, ...