On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-10-1687.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2011
Before Judges Cuff and Lihotz.
Tried by a jury, defendant Jordan Atkinson was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four). Following merger, the trial judge imposed an aggregate sentence of fifteen-years in state prison, eighty-five percent of which must be served prior to parole consideration, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with a five-year period of parole supervision upon release.
Defendant appeals from his conviction and sentence arguing:
DEFENSE COUNSEL WAS UNCONSTITUTIONALLY INEFFECTIVE WHEN HE CONCEDED THE DEFENDANT'S GUILT OF THE ELEMENTS OF ALL THE CRIMES IN THE INDICTMENT, APPARENTLY OUT OF A MISTAKEN BELIEF THAT HIS CLAIMS THAT THE CO-DEFENDANT "PUT [DEFENDANT] UP TO THIS" AND THAT DEFENDANT "NEVER [HAD] ANY INTENT TO HARM"
THE ROBBERY VICTIM WERE ACTUALLY DEFENSES TO THE CRIMES CHARGED (Not Raised Below).
THE MATTER SHOULD BE REMANDED FOR MERGER AND RESENTENCING.
Following our review of the arguments presented, in light of the record and the applicable law, we affirm defendant's conviction. However, a remand for resentencing is necessary to properly provide for the merger of counts two and three with count one.
The State presented these facts at trial. On July 30, 2007, Joseph Olarra was working as a gas station attendant at the Exxon gas station on New Brunswick Avenue in Woodbridge. At approximately 6:15 a.m., Olarra observed a white male with pale skin and reddish hair walking toward him, wearing a black hooded sweatshirt and baggy khaki shorts. When the man, later identified as defendant, was "around [twenty-five] to [thirty] feet" away, Olarra saw him pull a black mask over his face, reach into his sweatshirt pocket and say, "give me all the money in your pocket. I have a gun." Olarra said "no." Olarra then looked to his left and noticed a black Ford Explorer, driven by a black male, waiting at a gas pump. When defendant demanded money, the Explorer abruptly left the gas station. Defendant reiterated his demand for money and again asserted he had a gun. Olarra yelled to his co-worker "go inside and call the police department" because "[w]e're getting robbed." Defendant "took off" on foot, in the same direction the Explorer had exited.
Woodbridge police detective Robert Ptaszynski received a "holdup alarm" call over his police radio along with a description of the suspect. Responding in a marked vehicle, Detective Ptaszynski traveled on New Brunswick Avenue in the direction the suspect had fled and saw defendant walking on the side of the road. Defendant matched the description of the suspected gunman given by Olarra and Detective Ptaszynski noticed defendant was perspiring and his face looked red. Detective Ptaszynski pulled his police cruiser alongside defendant as his fellow officer also pulled up, exited her vehicle, and asked defendant to stop. Defendant "took off," running toward a Burger King. Detective Ptaszynski drove toward the Burger King and parked his police car in position to cut off defendant's escape. As defendant attempted to flee, he reached into his waistband. Detective Ptaszynski drew his weapon and screamed, "let me see your hands." After reiterating the command, defendant complied and dropped a handgun. Detective Ptaszynski placed defendant under arrest and secured the weapon, which was a "Daisy CO2 pellet gun," which although operable, was rendered ineffective by the absence of a CO2 cartridge or ammunition.
Woodbridge police officer Benjamin Stevenson went to the Exxon station and transported Olarra to the scene of defendant's arrest. Olarra positively identified defendant as the man who attempted to rob him. With defendant's assistance, police located the black Ford Explorer at the Kings Inn in Rahway. Using the description they received from defendant, police apprehended co-defendant Philip Sharp. Olarra was transported to the motel where he positively identified Sharp as the driver of the Explorer he saw speed away from the Exxon station.
A six-day trial commenced on June 8, 2009. At the close of the State's case, defense counsel proposed to called Sharp as a defense witness. Prior to Sharp taking the stand, the prosecutor advised she believed Sharp would testify consistently with his prior statement, which would not provide exculpating ...