On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-06-1490.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, C.L. Miniman and LeWinn.
Defendant Frebert Bonhometre appeals his convictions for first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; fourth-degree tampering with physical evidence, contrary to N.J.S.A. 2C:28-6(1); and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(3). The trial judge sentenced defendant to a twelve-year term in prison with an eighty-five-percent parole disqualifier on the armed-robbery conviction pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a concurrent one-year term on the evidence-tampering conviction; and a concurrent three-year term on the resisting-arrest conviction. We affirm the latter two convictions and sentences but reverse the armed-robbery conviction, suppress defendant's confession, and remand for a new trial on the armed-robbery charge.
The trial evidence established that during the morning hours of November 27, 2006, defendant entered the First Atlantic Federal Credit Union (Credit Union) on Route 66 in the ShopRite shopping center in Neptune Township. He approached Matsuyo Hansford, who was working behind the counter as a bank teller. Defendant slid a note across the counter that read: "I have a gun, and give me some money . . . or you will be dead." Defendant's right hand was concealed in his pocket, where an object that appeared to be a gun pointed toward Hansford. Defendant quietly instructed her to "open the drawer," and as she moved to comply, defendant warned, "[D]on't touch any alarm." Hansford opened the drawer, and defendant leaned over the counter and grabbed some cash out of the drawer. Taking the note with him, he turned around and walked out of the bank. Hansford then activated the alarm and shouted to her manager, Patricia Ippolito.
Ippolito ran to the front door to see the robber and observed a black male walking towards a vehicle. He was approximately 5'10" and was wearing a baseball cap, a long-sleeved, white-striped flannel shirt, and dark colored pants. Later identified as defendant, the man got into the driver's side of the vehicle and drove away. The vehicle was blue with scuff marks on the bumper and rear and had black tires and New York plates. Then Ippolito returned to the Credit Union and called the police. It was determined that a total of $1,741 had been stolen, broken down into "20s, tens and ones."
Officers arrived at the scene within minutes. Bank security provided the officers with footage that the surveillance system had captured during the robbery. Ippolito also provided them with descriptions of the suspect, his vehicle, and his direction of travel. These descriptions were conveyed through dispatch and, in response, Detective Kevin Devine headed to the Credit Union.
In the ShopRite parking lot, Devine observed a car that fit Ippolito's description: "a light blue small car, had some rust on it, some body work on it, with a New York license plate on it." A lookup on the vehicle revealed that it was registered to Maria Bonhometre from New York. Through "a Fort Monmouth sticker that was in the vehicle," Devine "checked with the FBI database and found that [defendant] had been stopped in that vehicle on Fort Monmouth." Then Devine went to the Credit Union to inform Detective Michael Dugan that he had found a car "that fit the description of the vehicle that was observed leaving the bank."
Detective Philip Seidle took Ippolito to the ShopRite parking lot to view the automobile, and she identified it as the vehicle that the suspect entered. The vehicle was towed to a Neptune Township garage, where it was secured. Then a search warrant was obtained and executed that same day. In the car, officers found a "checkbook for a Shawana Smith" containing checks and carbon copies of checks made out to defendant. Officers also discovered defendant's New York State driver's license and a Credit Union bank card.
The following day, November 28, 2006, Detective Captain Edward Swannack went looking for defendant near his home address and observed "someone who fit his description." Believing that he had found the suspect, he called for backup, and Seidle and Detective Damico responded. When defendant noticed the detectives, a foot pursuit ensued during which defendant started pulling cash from his pocket and throwing it to the ground. Seidle continued to order defendant to "stop, stop" until eventually he caught up with defendant and knocked him to the ground. There was a brief struggle, but with the aid of Swan-nack and Damico, Seidle was able to control defendant and handcuff him. The police recovered $688.85 of the money that defendant had thrown away during the foot pursuit but were unable to determine if it was part of the money stolen from the Credit Union.*fn1
The officers took defendant back to headquarters where he participated in a videotaped interview with Dugan and Detective Pamela Ricciardi. The tape was played to the jury at defendant's trial, and the jury was provided with a transcript of the video as a guide. The video shows defendant waiving his Miranda*fn2 rights and confessing to the armed robbery.
Additionally, defendant told the detectives that he had been using excessive amounts of cocaine and had been staying in a crack house, where he purchased cocaine on "credit." He robbed the Credit Union to repay the dealers' loan at the suggestion of the dealers because they threatened him if he did not do as they wished. He also explained that he was high and did not actually have a gun during the robbery.
At trial, defendant moved to suppress his confession, and the judge conducted a Miranda hearing, at the conclusion of which he denied defendant's motion. Defendant thereafter asserted duress as a defense to the armed-robbery charge. Nevertheless, the jury found defendant ...