On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-08-00558.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 30, 2011
Before Judges Payne and Messano.
Defendant, Tysean Clarke, appeals from his conviction for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2a and N.J.S.A. 2C:15-1a(2), and for first-degree armed robbery, N.J.S.A. 2C:15-1b. He also appeals as excessive his sentence for the first-degree armed robbery of sixteen years in custody with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following issues:
POINT I BOTH CONVICTIONS SHOULD BE REVERSED BECAUSE THE STATE FAILED TO PROVIDE CORROBORATION OF DEFENDANT'S CONFESSION.
POINT II THE TRIAL COURT ERRED BY NOT CHARGING THE JURY CORRECTLY REGARDING THE STATE'S REQUIREMENT TO CORROBORATE DEFENDANT'S STATEMENT.
POINT III THE TRIAL COURT ERRED IN NOT CHARGING THEFT AS A LESSER-INCLUDED OFFENSE.
POINT IV THE COURT ERRED BY ALLOWING THE OFFICERS TO TESTIFY ABOUT THE ARREST OF TONYA WOOD AS IT WAS INADMISSIBLE HEARSAY. (Partially Raised Below.)
POINT V THE TRIAL COURT ERRED BY NOT ALLOWING DEFENSE COUNSEL TO ELICIT RELEVANT EVIDENCE REGARDING ANOTHER POSSIBLE SUSPECT.
POINT VI THE SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE.
Defendant's prosecution arises from an armed robbery, at approximately 9:40 p.m. on June 24, 2004, of an Ultra cosmetics store in Watchung, New Jersey, allegedly perpetrated by defendant, his brother, Oshea Clarke, and Troy Keets and facilitated by store employee Tonya Wood, who purported to be a victim of the robbery.
The case was tried previously, resulting in a jury's determination that defendant was guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2a and N.J.S.A. 2C:15-1a(2), and first-degree armed robbery, N.J.S.A. 2C:15-1b. The verdict was appealed, and we reversed. State v. Clarke, No. A-0382-06 (App. Div. June 21, 2007). We found that the judge's charge on accomplice liability was insufficient because it failed to instruct the jury that it could find defendant guilty of robbery in the second degree while finding his co-defendants guilty of robbery in the first degree and that the omission constituted plain error. State v. Clarke, supra, slip op. at 9-14. We also found testimony by police officers that they had taken a statement from Wood and, thereafter, they sought and arrested defendant, Oshea Clarke, and Keets impermissibly raised the inference that defendant had been identified by Wood as someone who participated in the crime, id. at 14-15, and we required, in any retrial, that police testimony "must be significantly limited and should not be admitted unless it serves to rebut a claim that the police acted unfairly in investigating or arresting defendant." Id. at 15. As a final matter, we observed that we could not "divine how the testimony may evolve at any future trial." Ibid. However, we indicated that, based on the testimony given at the first trial, "the judge appropriately denied defendant's request to instruct the jury on theft as a lesser-included offense of robbery." Ibid. In reaching that conclusion, we stated that "[w]e fail to see how the evidence could reasonably support the conclusion that defendant committed a theft." Id. at 16.
A retrial of the matter occurred from March 3 to 6, 2008. At that trial, testimony was presented by the victim of the robbery, Nicole Hoffman, administrative manager of the Ulta store and salon, and police witnesses Andrew Hart, Timothy Wenzel and William Kelly.
Hoffman testified that at 9:00 p.m. on June 24, 2004, the store was closed to the public. Just before the store closed, Hoffman observed Wood using her cell phone while completing a customer purchase. Because use of cell phones on the floor was prohibited, Hoffman instructed Wood to put the phone away, which she did. Thereafter, three employees left, but Hoffman and Wood remained to finish closing up the store. Some time later, Wood asked for permission to leave the store to smoke, which was granted. Hoffman walked Wood to the door and unlocked it so that she could exit, leaving the door unlocked for Wood's re-entry. ...