On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-08-0723.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011
Before Judges Reisner and Hayden.
Defendant Richard Ramon Gardner appeals from his conviction for first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy, N.J.S.A. 2C:5-2; fourth-degree theft, N.J.S.A. 2C:20-3; disorderly-persons simple assault, N.J.S.A. 2C:12-1a(3); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7a. He also appeals from his aggregate sentence of eighteen years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We affirm the convictions, the eighteen-year NERA sentence imposed for robbery, and the concurrent sentence imposed for the certain persons offense. However, as the State concedes, the convictions for conspiracy, theft, assault, and possession of a weapon for an unlawful purpose must all be merged into the robbery conviction. Therefore, we remand for the limited purpose of correcting the judgment of conviction to reflect that merger.
This was the most pertinent trial evidence. Bruce Hanson testified that on May 3, 2006, he went to a house in Franklin Township, Gloucester County, occupied by the Eli family. The purpose of his visit was to retrieve a cell phone that he had given to Marcella Eli six months earlier, in exchange for drugs. While he was at the house, he pulled out a roll of cash and gave the Eli family's grandmother ten dollars to buy beer. He stayed at the house for a couple of hours, during which time defendant Richard Gardner was "in and out" of the premises. At the time, Hanson had met defendant once or twice, knew he was related to the Eli family, and believed his last name was also Eli.
Between 2:30 and 3:00 p.m., defendant left the Eli house and began walking toward Route 47. A car stopped and the driver, a woman later identified as Cynthia Corsey, offered him a ride, which he accepted. Omar Rhodes, whom Hanson did not know at the time, was in the front passenger seat. Richard Gardner was seated in the back behind Rhodes. Hanson got into the back seat behind the driver. As they were driving, Rhodes said that he needed to urinate, and Corsey turned the car into a local park where there was an outhouse. However, she drove past the outhouse and stopped the car. Rhodes got out of the car, walked around to the left passenger door and leaned against it, preventing Hanson from getting out of the car. At that point, Gardner asked, "You know what time it is?" He then punched Hanson in the forehead, pulled out a knife and held it to Hanson's throat, while demanding his money. Corsey also threatened Hanson with a box cutter. According to Hanson, they robbed him of $280, and then told him to get out of the car.
As the car drove away, Hanson was able to observe and memorize the license plate number. He ran over to three men who were fishing in a nearby lake, borrowed a cell phone from them, and called 9-1-1.*fn1 The tapes of that call and a subsequent return phone call from the police were played for the jury. At the trial, Hanson identified Gardner and Rhodes as the men involved in the robbery.
During his direct examination, Hanson admitted signing a statement given to him by Marcella Eli, Gardner's sister, in which Hanson asserted that he had mis-identified Gardner as one of the robbers. The sister in turn gave the statement to Gardner's attorney. Although the statement purported to be notarized, Hanson testified that he did not sign it in the presence of a notary. Without objection, he explained that he signed the paper because "I know what it's like to have a drug problem. I've been there." On re-direct examination, he further explained that he was very reluctant to testify because he had children that lived in "the same town" and testifying might "create an issue for them." Again, there was no objection.
Testifying for the State, Cynthia Corsey acknowledged that she was still a defendant in the case, facing a separate trial on charges of robbery and possession of a box cutter. She denied that the State had offered her any plea deal in return for her testimony. Corsey testified that at the time of the robbery, she was Rhodes' girlfriend but had only a passing acquaintance with Gardner. On the afternoon of May 3, 2006, Gardner called Rhodes to ask for a ride to his grandmother's house, and Corsey agreed to drive him in her car in return for gas money. When they arrived at the house, a barbecue was in progress. She saw Bruce Hanson in the back yard. As Corsey, Rhodes, and Gardner were driving away from the barbecue half an hour later, they saw Hanson walking down Delsea Drive, and at Gardner's suggestion they stopped and offered him a ride home. On the way, Rhodes asked her to stop so he could use the bathroom, and Corsey pulled into the park, near the "port-apotty."
After Rhodes got out of the car, Corsey heard a "tussle" going on in the back seat. Looking in the rearview mirror she saw Gardner holding Hanson in a headlock, and she heard Gardner say, "You know what time it is?" She then saw Gardner searching Hanson and telling him to empty his pockets. She did not see a knife, but saw that Gardner was holding something against Hanson's neck.
Corsey admitted she had a box cutter in her car, but denied holding it while Gardner was robbing Hanson. She also attempted to exonerate her boyfriend Rhodes, testifying that he was not holding the rear car door closed; rather, he was leaning against the car while urinating on the ground, because the port-a-potty was locked. On re-direct Corsey testified, without objection, that in testifying she was "putting [her]self at risk of things out on the street." She explained that "everybody knows that . . . there's a thing called snitching so that's my main concern." She did not specify which person or persons might believe she was a "snitch."
Defendant's counsel called Detective Kenneth Cresitelli, one of the investigators on the case, as a defense witness. Cresitelli took a recorded statement from Hanson on May 3, 2006, at about 8:45 p.m. The defense had not confronted Hanson with the taped statement during Hanson's cross-examination, thereby depriving Hanson of a chance to address any alleged inconsistent statements on the tape. See N.J.R.E. 613(b). Therefore, the judge ruled that the defense could introduce the tape through Cresitelli, and play it for the jury, but could not question the detective about the tape to highlight any alleged inconsistencies with Hanson's trial testimony. Nor would the judge allow ...