On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-11-3398.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2011
Before Judges Yannotti and Kennedy.
Defendant Fuquan Alexander was tried before a jury and found guilty of carjacking, kidnapping, robbery and other offenses. He appeals from the judgment of conviction entered on May 24, 2010. We affirm.
Defendant and co-defendant Jabar Jones (Jones) were charged by an Essex County grand jury with second-degree conspiracy to commit kidnapping, carjacking and robbery, N.J.S.A. 2C:5-2; N.J.S.A. 2C:15-2; N.J.S.A. 2C:13-1(b); N.J.S.A. 2C:15-1 (count one); first-degree carjacking, N.J.S.A. 2C:15-2 (count two); first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count three); first-degree robbery, N.J.S.A. 2C:15-1 (count four); second-degree burglary, N.J.S.A. 2C:18-2(b)(1) (count five); third-degree making terroristic threats, N.J.S.A. 2C:12-3(a) (count six); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b) (count seven); first-degree employing a juvenile in the commission of a criminal offense, N.J.S.A. 2C:24-9 (count eight); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The charges against Jones were severed, and defendant was tried before a jury.
At the trial, the State presented evidence which established that in the early morning hours of February 22, 2008, Techelet Jean (Jean) was driving a motor vehicle on Routes 1 and 9 in Newark. Jean noticed three teenage females, including one later identified as Jasmine Gray (Gray), on the side of the road near a disabled Toyota vehicle. Jean stopped to help them and agreed to drive them to Irvington. While Jean was speaking with them, two men, later identified as defendant and Jones, approached. Defendant and Jones indicated that they also were expecting a ride to Irvington. Jean felt obliged to give all five individuals a ride.
Soon after they entered the car, one of the girls requested that Jean stop so that she could use a restroom at a fast food restaurant. Defendant and Jones remained in the car while the others got out. Jones asked Jean to provide him with money for a taxi. When Jean refused, Jones spoke with defendant and then turned and struck Jean several times in the face with a gun. All five individuals got back into the car. Defendant took the gun and held it pointed at Jean. Defendant patted Jean down, looking for money. When he did not find any money, he told Jean to drive to his bank.
Jean drove to the bank and two of the girls accompanied him to the automatic teller machine (ATM), while defendant, Jones and Gray remained in the car. At the ATM, the two girls asked for Jean's debit card and personal identification number, which he provided. They attempted to withdraw $500 but they were unable to do so. They returned to the car and two of the girls said they wanted to return home. Jean drove them to Irvington, where they got out. Defendant, Jones and Gray remained in the car.
Defendant and Jones then told Jean to drive to Jean's home in West Orange, believing that he had additional money there. Jean drove there and defendant and Jones accompanied him into his home, while Gray waited in the car. Jean led defendant and Jones to the basement. There, defendant and Jones repeatedly hit Jean with the gun and kicked him. The two men led Jean out of the basement, and told him repeatedly they were going to kill him.
As they were ascending the stairs, Jean grabbed the gun and screamed. Defendant and Jones tried to recover the gun but eventually gave up and fled with Jean's wallet, which contained less than $10, and Jean's cell phone. Jean's family members heard the commotion and called the police. The police arrived. Jean described the perpetrators and the stolen car. He was transported to a hospital where he was treated.
At about five o'clock a.m. on February 22, 2008, the Montclair police stopped defendant, Jones and Gray as they were driving through Montclair in the stolen vehicle. When confronted by the police, defendant and Jones fled, while Gray remained in the car. The police quickly apprehended defendant and Jones, and all three were taken into custody. The police recovered Jean's wallet and cell phone from the back seat of the car.
Jean was released from the hospital on February 23, 2008. He went directly to the West Orange police department, where he gave a statement to the police and identified Gray, defendant and Jones through a one-way mirror. At trial, he identified defendant as one of the perpetrators.
The jury found defendant guilty on all charges. The court sentenced defendant on May 24, 2010. The court denied the State's motion for imposition of an extended term. After merging certain offenses, the court sentenced defendant to a thirty-year term of imprisonment on the carjacking, with a twenty-five and a half year period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a concurrent twenty-year term on the kidnapping, with a NERA period of parole ineligibility; a consecutive ten-year term for the burglary, with a NERA period of parole ineligibility; and a concurrent twenty-year term for employing a juvenile in the commission of an offense, with a seventeen year period of parole ineligibility. The court also imposed appropriate monetary penalties.
Defendant appeals and raises the following arguments for our consideration:
THE SHOW-UP PROCEDURE UTILIZED BY THE POLICE WAS IMPERMISSIBLY SUGGESTIVE AND DEPRIVED DEFNDANT OF A FAIR TRIAL. (Not raised below).
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY. (Not raised below).
THE ADMISSION OF TESTIMONY REGARDING THE OWNER OF THE TOYOTA AUTOMOBILE WAS IMPROPER EVIDENCE THAT SHOULD HAVE BEEN EXCLUDED.
IT WAS ERROR FOR THE SENTENCING COURT TO FAIL TO MERGE THE OFFENSES OF ...