On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-08-2828.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2011
Before Judges Yannotti and Kennedy.
Defendant Faheem Patterson appeals from an order entered by the Law Division on November 25, 2008, denying his petition for post-conviction relief (PCR). We affirm.
Defendant and co-defendant Jimmie Tyson (Tyson) were charged with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count five). Defendant and Tyson were tried before a jury.
At the trial, the State presented evidence which established that on the evening of June 14, 2003, Jose Menendez (Menendez) and Eduardo Recuendo (Recuendo) went to a liquor store in Orange, New Jersey. Outside the store, Menendez noticed a woman, later identified as Zenobia Winbush (Winbush), who was trying to attract their attention.*fn1 Menendez and Recuendo went inside and purchased beer and cigarettes. When they exited the store and returned to the parking lot, Winbush again tried to get their attention.
Tyson and defendant approached Menendez and Reuendo from behind. Tyson pointed a gun at Recuendo and defendant punched Menendez in the face. Tyson and defendant demanded that Recuendo and Menendez give them their keys, money and the contents of their pockets. Tyson removed something from Recuendo's wallet, while Menendez gave defendant his wallet and cell phone. Tyson and defendant also took the cigarettes and beer that the victims had purchased and then fled to the rear of the parking lot. The victims returned to the liquor store and called the police.
Winbush testified that on June 14, 2003, she met defendant and Tyson at a motel near the Garden State Parkway at about 10:00 p.m. Winbush did not know defendant and Tyson; however, she went with them to find some marijuana. At some point, someone gave them a ride to the liquor store in Orange. Winbush testified that she observed defendant and Tyson rob two men in the parking lot of the liquor store. According to Winbush, Tyson pointed a gun at one of the men and defendant punched the other man in the face.
Winbush further testified that, after the robbery, she ran to a nearby train station. Defendant and Tyson followed her. Defendant, Tyson and Winbush then walked along the railroad tracks. Winbush said she wanted to go home. She asked for a cell phone. Defendant gave her a cell phone. The threesome then stopped at a nearby house, where defendant spoke with several individuals. Winbush and Tyson went to a doughnut shop on Main Street, while defendant spoke with someone outside a tavern across the street.
Winbush said that Tyson gave her fifteen dollars, which she used to buy food and a drink. Defendant, Tyson and Winbush then walked down Main Street, and a police officer approached them in his car, believing they matched the descriptions of the persons who committed the robbery.
The officer engaged Winbush in casual conversation and noticed that defendant and Tyson seemed anxious. The officer called for back-up and, when he turned his car around and again approached the suspects, they fled. The officer called out and Winbush stopped. Winbush was taken into custody. She was found in possession of a cell phone, which was later identified as the cell phone taken during the robbery.
Defendant and Tyson continued to run. An officer ordered defendant to stop. Defendant complied and was taken into custody. Another officer arrived and pursued Tyson into an alleyway. Tyson was arrested. The officer searched the immediate area and found a 9mm Luger weapon under a nearby vehicle.
Defendant testified on his own behalf. He denied meeting Winbush at the motel. He testified that he and Tyson went to the liquor store, purchased liquor and then spoke with Winbush in the parking lot for about ten minutes. Defendant stated that he and Tyson then left the scene and went to the home of Thomas Howard (Howard).
Defendant additionally testified that he and Tyson were drinking on Howard's porch shortly after 10:00 p.m. Defendant denied that he robbed anyone or possessed a weapon. Defendant said that sometime after midnight, he and Tyson met Winbush and made their way to Main Street, where they were approached by the police.
Tyson also testified. He denied meeting Winbush at the motel. He denied being in possession of a cell phone or handgun. Tyson stated that he met Winbush at the liquor store around 10:00 p.m. He said that later in the evening, he spoke to Winbush across the street from Howard's house and he and defendant then walked with Winbush toward Main Street. Tyson and Winbush went to the doughnut shop. Thereafter, Tyson, defendant and Winbush walked along Main Street before they were approached by the police.
Howard testified that he had known defendant and Tyson for about eight or nine years. He said that on June 14, 2003, he was with defendant and Tyson from about 11:00 a.m. until 3:00 p.m. Later, they went for a ride with a friend and stopped at a liquor ...