On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-07-1367.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Baxter and Koblitz.
Defendant, Marcus Pettiford, appeals from his conviction by a jury for second-degree robbery, N.J.S.A. 2C:15-1, as a lesser-included offense of first-degree robbery, and from his sentence of eight years in custody, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS MR. PETTIFORD'S STATEMENT TO POLICE.
THE TRIAL COURT ERRED IN PERMITTING PREJUDICIAL TESTIMONY CONCERNING THE SEIZURE OF NARCOTICS AND A HANDGUN FROM 156 GRANT AVENUE ON THE NIGHT THAT THIS DEFENDANT WAS FOUND AT THAT ADDRESS. (NOT RAISED BELOW.)
THE TRIAL COURT ERRED BY FAILING TO STRIKE TESTIMONY CONCERNING DEFENDANT'S NICKNAME, "LIE," AND IN FAILING TO PROVIDE A CURATIVE INSTRUCTION TO THE JURY, THEREBY PREJUDICING MR. PETTIFORD'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)
THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTAL.
THE PROSECUTOR ENGAGED IN MISCONDUCT DURING ITS SUMMATION BY COMMENTING ON MR. PETTIFORD'S POST-ARREST SILENCE. (NOT RAISED BELOW.)
THE TRIAL COURT ERRED IN FAILING TO ADEQUATELY CHARGE THE JURY REGARDING CREDIBILITY OF WITNESSES. (PARTIALLY RAISED BELOW.)
THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON THEFT AS A LESSER INCLUDED OFFENSE OF ROBBERY. (NOT RAISED BELOW.)
THE TRIAL COURT ERRED IN PROVIDING A SUPPLEMENTAL INSTRUCTION TO THE JURY WHICH DIRECTED A VERDICT. (NOT RAISED BELOW.)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)
THE TRIAL COURT MISAPPLIED ITS DISCRETION IN REFUSING TO ALLOW MORE THAN ONE OF MR. PETTIFORD'S FAMILY MEMBERS TO SPEAK AT HIS SENTENCING AND IN FAILING TO SET FORTH ITS REASONS FOR ITS DECISION. (NOT RAISED BELOW.)
THE TRIAL COURT MISAPPLIED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS. (NOT RAISED BELOW.)
Evidence was presented at trial that, on November 10, 2006 at approximately 8:00 p.m., defendant and Benjamin Wilson, armed with a handgun, robbed a bodega in Jersey City of $800, scratch- off lottery cards, and two cigar boxes of calling cards. They were followed by one of the store's owners to a nearby apartment building located on Grant Avenue. The building was surrounded by the police who were called to the scene, and consent to search was obtained from the occupants of all apartments other than apartment two. Nailah Mayweathers, a fifteen-year-old occupant of apartment two, refused consent to a police search of the premises. However, her brother Jaliyl consented, as did Jaliyl's mother, Rhonda Martin.
A search of the premises revealed six people to be present. Defendant and Wilson were found in the back bedroom of the apartment. The two cigar boxes were found in a closet off of the rear bedroom; the calling cards were on the bed in the rear bedroom; and the lottery tickets, substantial amounts of wet cash, and two bandanas used in the robbery were found in the rear bedroom's closet. Following his arrest, defendant was found to have $300 in wet cash in his pants pocket. Apparently an unsuccessful attempt had been made to flush the cash down the toilet. Elsewhere in the apartment, the police found clothing identified by the bodega's owners as having been worn during the robbery, a loaded nine-millimeter handgun identified as having been used in the robbery, a loaded .22 caliber long rifle handgun, and seventy-seven vials of cocaine.
In a statement to the police, Nailah Mayweathers said that around 8:30 p.m. defendant and Wilson had arrived at the apartment, out of breath and carrying money. They proceeded first to the rear bedroom, and then to the living room where they counted the cash. Defendant and Wilson then returned to the rear bedroom, where Nailah observed the lottery tickets and a Dutch Masters cigar box before defendant and Wilson closed the door. Shortly thereafter, she heard the police sirens. When the police asked her consent to search the apartment, she refused, not knowing what to do in the circumstances.
A grand jury returned an indictment against defendant, charging him
with first-degree armed robbery, N.J.S.A. 2C:15-1, third-degree
unlawful possession of a handgun, N.J.S.A.
second-degree possession of a handgun for an unlawful
purpose, N.J.S.A. 2C:39-4a, fourth-degree possession of armor-piercing
hollow-nose bullets, N.J.S.A. 2C:39-3f, fourth-degree possession of a
defaced firearm, N.J.S.A. 2C:39-3d, and possession of a weapon by a
convicted felon, N.J.S.A. 2C:39-7b. However, defendant was acquitted
by a jury of all weapons charges, and he was convicted only of the
lesser-included offense of second-degree robbery. This appeal
On appeal, defendant first argues that statements made by him to the police while in custody should not have been admitted at trial, because they were taken in violation of his Miranda*fn2 rights.
At a Miranda hearing conducted by the trial judge, Detective Marc Lavelle testified that, on the night of the robbery, he was called in to the police's East District headquarters to assist in conducting interviews and taking statements in connection with the robbery of the bodega. Detective Lavelle was assigned to interview defendant, and he was advised that defendant was a suspect in the robbery. Upon entering the room, the detective advised defendant orally of his Miranda rights, which defendant stated that he understood. He further ...