On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-08-1263.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2011
Before Judges A. A. Rodriguez, Grall and LeWinn.
Following a jury trial, defendant Jermaine Smith-Echevarria was convicted of second-degree robbery, N.J.S.A. 2C:15-1, and third degree resisting arrest, N.J.S.A. 2C:29-2(a)(3). Defendant moved for a judgment of acquittal, R. 3:18-2, or alternatively for a new trial, R. 3:20-1. The judge denied both motions, granted the State's motion for imposition of an extended term, and imposed a fifteen-year term with a NERA*fn1 parole disqualifier on the robbery conviction and a concurrent ten-year term on the resisting arrest conviction. We affirm.
These are the relevant facts. At about 9:00 p.m. on May 26, 2007, Alberto Aldana bicycled to a local park in New Brunswick to meet a friend. He had been paid $400 in cash from work that day. Around 11:30 p.m., Aldana left the park to return home. As he walked alongside his bicycle, because its front tire was flat, two men approached him. One, later identified as defendant, came from behind and grabbed him by the throat. Aldana was thrown to the ground and $440 was taken from him. He could not identify which of the two assailants took his money. The assailants then fled.
Aldana was dazed, but managed to get up and chase his two assailants while carrying or pushing the bicycle. At some point, the two assailants separated. Aldana pursued defendant, but lost sight of him in the area of Townsend Street. However, a bystander, later identified as Chris Conte, gestured towards defendant's location. Aldana told Conte he had been robbed by defendant and asked him to call the police. As Aldana continued his chase, he heard a police car approaching. He pointed to defendant as the individual who robbed him.
Aldana testified that the chase lasted ten to fifteen minutes. Although he did not observe defendant's face during the initial attack, he did see it clearly at one point during the chase. He did not provide any testimony regarding defendant holding a brown bag during the robbery or the chase, as Conte later reported to the police in his 9-1-1 call. Aldana told the jury that he was "a hundred percent sure" that defendant was the individual who had grabbed him from behind.
Conte did not testify, but the following portion of his 9-1-1 call was played at the trial:
THE CALLER: Hi, yeah. These two guys just ran around my house and the one guy on a bike just said the guy in front of him stole $400 from him and they took off down the street and he said call the police. So I called the police.
I'm on Townsend Street, 218 Townsend, just off Livingston.
THE DISPATCHER: 218 Townsend?
THE CALLER: I don't know. I mean, they went down the street. They're not here anymore. But, anyways, they were just here. They went down towards -- towards French Street.
THE DISPATCHER: What did he look like? THE CALLER: They were -- the guy on the bike is a -- is a short Mexican dude with a white hat. And the other guy was a black dude with a brown paper bag and a black shirt.
THE DISPATCHER: I'm sorry, is he black, white or Hispanic?
THE CALLER: The -- the other guy running, the -- the -- was a black guy. He was kinda --
THE DISPATCHER: A black male?
THE CALLER: -- (indiscernible) five. Black male with a shirt and jeans, I guess? And he was -- he had a brown paper bag.
THE DISPATCHER: And the guy chasing him is a, what, a Hispanic Mexican? You know, on the bike?
THE CALLER: The dude -- actually, I guess, (indiscernible) the black dude and he's actually right on the ...