On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-10-2876.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2011
Before Judges Parrillo, Grall and Alvarez.
A jury found defendants Shadee Alexander and Robert Wilson guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; first-degree robbery, N.J.S.A. 2C:15-1; third-degree receiving stolen property, N.J.S.A. 2C:20-7; second-degree possession of a handgun without having obtained a permit, N.J.S.A. 2C:39-5b; and second-degree possession of a firearm with the purpose of using it unlawfully against another, N.J.S.A. 2C:39-4a. Their co-defendant, Kashif Holt, pled guilty to hindering apprehension and testified on behalf of the State in accordance with a plea agreement that called for his release on probation following his testimony.
The judge merged defendants' convictions for conspiracy, receiving stolen property and possession of a firearm for an unlawful purpose with their convictions for first-degree robbery. He then sentenced defendants as follows. Based on Alexander's prior convictions, which qualified him for a discretionary term pursuant to N.J.S.A. 2C:44-3a, the judge sentenced him to a thirty-year extended term for first-degree robbery that is subject to periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition, the judge sentenced Alexander to a concurrent five-year term for possession of a handgun without a permit. He sentenced Wilson to an eighteen-year term of imprisonment for robbery, subject to NERA periods of parole ineligibility and supervision, and to a concurrent five-year term for possession of a handgun without a permit. In both cases, the judge imposed appropriate fines, penalties, fees and assessments.
Defendants' separate appeals were submitted to us on the same calendar. We now consolidate the appeals and affirm the defendants' convictions and sentences.
The robbery occurred at about 9:00 p.m. on March 29, 2008, in a deli owned by Mr. and Mrs. McElveen. The McElveens and their nine-year-old granddaughter were preparing to close the store for the night when the men entered and announced their intention to commit a robbery. Their faces were covered; one man used a black scarf that had balls on its ends. Two of the three men brandished guns; the one wearing the black scarf with balls stuck his gun in Mrs. McElveen's face.
All three members of the McElveen family followed the intruders' instructions. Mrs. McElveen opened the register, and the McElveens got onto the floor. When the men complained about how little money they found and demanded more, the McElveens told them to lift up the register's change tray. Under that tray, they found more cash. One of the men threatened to take the McElveen's granddaughter if they did not produce more money. Thereafter, they searched Mr. McElveen's pants' pockets. As the intruders left the store with the cash taken from the register and Mr. McElveen, they grabbed cigarettes, lighters, "Black and Mild" cigars, and the cash register's change tray.
Once the men were outside, the McElveens took action. Mr. McElveen got up from the floor and saw the intruders get into a black Honda Civic. His granddaughter called 911. As Mr. McElveen watched the Honda Civic back out of the parking lot, he saw its bumper catch on the pavement.
An officer responding to the 911 call noticed a Honda Civic with a hanging bumper driving in the opposite direction. Although the driver turned without stopping for a red light, the officer continued on to the deli. When he arrived, the victims gave him a general description of the skin color and approximate heights of the three men and their make-shift face coverings.
Mr. McElveen also described the getaway car and its exit from the scene.
Upon hearing about the car, the officer suspected that it was the one he had passed en route, and he relayed the information he had. Detectives who heard the transmission spotted a car matching the description pull into the parking lot of a convenience store. Two of the men, defendants Wilson and Holt, got out of the front seat and went toward the store. The third, defendant Alexander, remained in the back seat. The detectives spoke to the men and looked into the car; they saw a cash register drawer, currency and a black scarf with balls in the back seat. Wilson, Alexander and Holt were arrested and searched. Wilson had several Black and Mild cigars, two lighters and about $200 in crumpled bills in his pocket.
Mr. McElveen was taken to the convenience store, where he identified the car and the black scarf with balls worn by the perpetrator who held the gun to his wife's face, but he could not identify any of the suspects. The cigars and lighters had bar code stickers that permitted the officers to later identify the items as merchandise from the McElveen's deli.
Although Mr. McElveen had not described or been asked to identify the clothing worn by a perpetrator prior to trial, during a hearing conducted mid-trial when the jury was not present, he was shown the jacket Wilson was wearing at the time of his arrest. At that hearing McElveen asked to see the back of the jacket and identified it as one worn by a perpetrator. In the presence of the jury, McElveen testified that the jacket looked "like one of the jackets one of the guys was wearing."
Holt, in accordance with his plea agreement, testified for the State. According to his account of the events, Wilson called him for a ride and he picked up Wilson, Alexander and a friend of theirs. They asked Holt to stop at the deli, which he did. Holt waited in the Honda Civic while the others went into the deli. Seven or eight minutes later they jogged out of the store and asked Wilson to "pull off," which he did. Holt then took the men back to the house. En route, the third man got out of the car. When Holt, Alexander and Wilson reached the house, Holt waited while the others talked to people on the porch and then drove to the convenience store where they were arrested.
Holt estimated that they reached the convenience store about seventeen minutes after leaving the deli. He claimed that he did not know that the cash register drawer, Black and Mild cigars, lighters and a scarf were in the backseat of the Honda Civic until he saw the officers remove those items at the convenience store.
Following his arrest, Holt gave the police a statement, which was recorded. At trial, Wilson's attorney was permitted to introduce the recording of Holt's statement to demonstrate inconsistencies between his trial testimony and his earlier account of the events. The transcript of the recording was given to the jurors to follow as they listened to the statement in court, but the transcript was not introduced into evidence. During deliberations, the jurors asked for the transcript of Holt's recorded statement. The judge denied that request but told the jurors they could listen to the recording.
The defendants presented an alibi defense. Wilson and Alexander's sister, Nafeesah Alexander, gave testimony tending to exonerate Wilson and Alexander. According to them, Alexander, Wilson and Nafeesah were at a house-party when the robbery occurred; they testified that Wilson and Alexander left the party sometime after 9:30 p.m.
Wilson also gave testimony tending to shift the blame for the robbery to Holt and to explain his possession of the incriminating evidence - the cigars, lighters and crumpled currency. He testified that the lighters were in the backseat of the car when Holt arrived and that he had the items in his coat pocket because Holt said he could have them. Wilson further explained that the $200 in crumpled bills found in his pocket was the remainder of a $1250 gift given to him by his uncle in December 2007. He produced the checks his uncle had written, and they were marked for identification. Wilson gave this testimony after the judge denied his requests to present his uncle as a witness and admit the cancelled checks into evidence.
On the foregoing evidence, the jurors found defendants guilty of all charges.
On appeal, Wilson and Alexander challenge their convictions and their sentences. Wilson raises the following issues:
I. DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
II. THE COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON THE STATE'S APPLICATION TO CROSS-EXAMINE DEFENDANT'S ALIBI WITNESS ON HER FAILURE TO PROVIDE A TIMELY ACCOUNT OF THE ALIBI TO THE AUTHORITIES, IN PERMITTING THE PROSECUTOR TO CROSS-EXAMINE HER ON HER FAILURE TO PURSUE EFFORTS TO PROVIDE SUCH AN ACCOUNT, IN PERMITTING THE PROSECUTOR TO ARGUE ON SUMMATION THAT HER TESTIMONY LACKED CREDIBILITY BECAUSE SHE DID NOT ...