On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-10-2332.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2011
Before Judges Lihotz and St. John.
After a jury trial, defendant Eric Na-Eem Rock was convicted of two counts of armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and, after a second jury trial, second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b)(1). Defendant is serving an aggregate custodial sentence of sixteen years, subject to eighty-five per cent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant argues that the trial judge erred in
(1) holding that his prior convictions would be admissible to impeach his credibility, should he choose to testify; (2) admitting certain witnesses' prior statements; and (3) denying his motion for a new trial. He also argues that his sentence is excessive. For the reasons that follow, we reject these arguments and we affirm.
We briefly discuss the pertinent procedural history. In pre-trial proceedings, the State moved for leave to introduce defendant's prior convictions for fourth-degree evidence tampering, N.J.S.A. 2C:28-6, and second-degree aggravated assault, N.J.S.A. 2C:12-1(b), to impeach defendant's credibility should he choose to testify. Following a Sands*fn1 hearing, the judge granted the State's application, but ordered the convictions sanitized. State v. Brunson, 132 N.J. 377 (1993).
The State also moved to introduce statements made to police by witnesses Amber Hall and Christian Albert, should either testify inconsistently with the prior statement. Following a Gross*fn2
hearing, the trial judge determined both statements, with certain redactions, would be admissible.
Defendant's trial took place before Judge Edward M. Neafsey and a jury. The jury returned a verdict finding defendant guilty of all counts. A subsequent trial was then held before the same judge and jury on the weapons possession charge, and the jury returned a guilty verdict. Defendant made a motion for a new trial, asserting the verdict in the first trial was against the weight of the evidence, and was the result of prosecutorial misconduct during cross-examination. Judge Neafsey denied the motion.
After merging the possession of a weapon for an unlawful purpose offense into the armed robbery, the court imposed a custodial sentence of two concurrent terms of sixteen years subject to the eighty-five percent ineligibility period pursuant to NERA for each armed robbery count; a five year term, with two years of parole ineligibility for the unlawful possession of a weapon, to be served concurrently to the armed robbery sentences; and eight years, with five years of parole ineligibility for the certain person offense to be served concurrently to the armed robbery sentences. A five-year period of parole supervision and appropriate fines were also imposed.
We derive the facts from the pre-trial and trial record on appeal.
At trial, the State's witnesses testified to the incidences which led to defendant's arrest and prosecution. On the evening of July 3, and into the early morning hours of July 4, 2006, a group of friends, including James Pierson, Christian Albert, Chris Bills, and Amber Hall were at Albert's house in Red Bank, socializing and drinking, after having watched the local 4th of July fireworks display.
Pierson, a school teacher, volunteer firefighter, and auxiliary police officer, testified that at approximately 4:15 a.m. on July 4, 2006, he, Bills, Albert, and Hall were sitting on the front porch when he observed two men walk from across the street and walk by the front of the house. Hall yelled something out to one of the men, like, "Is that you?" as if she recognized him. One of the men replied "What?", in an aggressive manner, and then stated "I'll be back in ten minutes." Both men continued walking down the street.
Pierson remained on the porch with Bills, who was asleep. Hall and Albert got into a car parked directly in front of the house to listen to music. Albert was in the driver's seat and Hall was in the front passenger seat. Pierson observed someone on a bicycle dressed in black, with a black ski mask covering his head and face, make his way around the vehicle to the driver's side. At this point, Pierson went inside the house, called the police, and gave them a description of the individual with the mask. As he was inside the house on the call with the police dispatcher, he heard what appeared to be a gunshot, and relayed that information to the dispatcher. After completing the call, Pierson went back outside and attempted to rouse Bills to get him inside the house. However, when Bills awoke, he walked down the stairs of the porch and proceeded around the parked car to the driver's side. Pierson returned to the house and called the police a second time. He could not see what was happening to Bills or Albert as the parked car was blocking his view, however, Pierson observed the masked man brandishing a firearm to his side, which appeared to be a black handgun, similar in size to the weapon he carried as an auxiliary police officer. A police car then arrived, and Pierson observed the masked man get back on his bicycle and, as he was leaving the front yard, remove his ski mask. Pierson was unable to see the man's face. Pierson then observed the police car pursue the man on the bicycle, and pull up adjacent to him within a few feet, on the right side of the car. Pierson was still on the phone with dispatch and warned that the man had a handgun. The police car and the bicyclist then disappeared from his view.
Albert testified he was sitting in the driver's seat of the car when someone showed up at the driver's side, and told him to get out. He stated that the man was wearing a mask, a black sweatshirt, and had light colored eyes. Albert recognized the man as the one who had been walking down the street fifteen minutes earlier. Albert stated that the man told him to empty his pockets, but Albert paused. The man pointed a gun at Albert, shot the gun into the air, and told him to get out of the car. Albert testified that the man took $800 from him.
When asked on direct examination if he knew the robber, Albert replied "I'm assuming it's Eric Rock." When asked again on cross-examination, he replied "Not definitely, no." Albert also testified that at the time of the robbery and his statement to police, which started at 6:20 a.m., he was intoxicated. In his statement to police, unlike his trial testimony, he definitively identified defendant as the man who robbed him at gunpoint.
Bills testified that Pierson woke him and told him Albert was getting robbed and to come inside. Bills did not know what was going on and, being intoxicated, he went down the steps around the car in time to see his friend Albert getting "held up." There, Bills saw a man wearing a black mask pointing a handgun at Albert. The man pointed the gun at Bills's chest and asked him if he had any money on him, to which Bills replied that he did not. The man patted down Bills's pockets to confirm. Bills did not recognize the man. Bills saw the man ride away on the bike, but did not see him remove his ski mask.
At trial, Hall testified that she recalled little of the events of that night. Her testimony acknowledged that in the statement she gave to Detective Clayton on July 6, 2006, she had said that she recognized the gunman as defendant based on his voice, body language, the way he walked, and also that he called her by name that night. She had known defendant for about four years. Prior to trial, but after giving her statement to Detective Clayton, Hall spoke to the prosecutor's office and said that she was not sure who the person was that did this and that she felt it was irresponsible on her part to make the identification when she was not sure. She stated that she had identified the gunman as defendant because people were saying it was him and she was going by what she heard.
Sergeant Errico Vescio was on patrol in the area and arrived at the scene at approximately 4:30 a.m. He observed someone wearing all black, riding a bike from the scene. The individual on the bike was wearing a mask, but Sergeant Vescio saw him lift the mask up. Sergeant Vescio followed the bicyclist in his patrol car and pulled alongside of him about a foot or two away. As soon as he looked over at him, he immediately recognized him as being the defendant. Sergeant Vescio was familiar with defendant, having seen him numerous times, as he serves on bike patrol in Red Bank. Additionally, Sergeant Vescio grew up in Red Bank, and knows members of defendant's family. As he pulled alongside defendant, Sergeant Vescio called him by name and said "stop, I need to talk to you." Defendant responded "I . . . got nothing to say to you." Defendant then sped up, drove in front of the patrol car, crossed the street, jumped off the bike, and ran into the backyard of a nearby house. Sergeant Vescio pursued him on foot, but ultimately lost sight of him. He notified other units to set up a perimeter and informed them that he had identified the individual as defendant.
Detective Robert Clayton responded to the scene after receiving a telephone call at 4:55 a.m., stating that there was a robbery which involved shots being fired. Officer Talerico had already arrived and had located a spent nine millimeter shell casing on the ground approximately three feet in front of the parked car on the driver's side. The officers also located the bicycle.
Detective Clayton interviewed Pierson and Albert at the scene. The detective could smell an odor of alcohol on Albert's breath, but Albert was able to verbalize everything without delay. Detective Clayton took a formal statement from Albert later that morning. Albert stated that he was sure the robber was defendant because he could tell by his distinct voice. Albert could also see his eyes which he described as very green.
Based on interviews with the witnesses and Sergeant Vescio, unsuccessful attempts were made to locate defendant that morning at his Red Bank address, which was two blocks from the scene of the robbery. Defendant was arrested in North Carolina on October 31, 2006.
Leslie Evans, defendant's girlfriend, testified on behalf of defendant. She stated that in June 2006, she and defendant decided to move to North Carolina. Later that month, they had a conversation in which defendant expressed his intention to go to North Carolina to find a place for them to live, where he stayed at his cousin Kai Shomo's house at least through the third week in July, at which time Evans went there to visit him.
During Evans's cross-examination, the prosecutor asked her if defendant had a job, to which she responded, "Not at the moment." Defense counsel objected and moved for a mistrial. At side bar, the trial judge agreed to strike the answer, noting that the question was "objectionable," but denied defendant's motion for a mistrial, stating that he was "satisfied that he can strike from the record the last response . . . [and] that this jury, which has been paying close attention throughout the trial, will follow his instruction to disregard." The judge also instructed the prosecutor not to further question Evans "about [defendant's] financial status or any money . . . that she provides." The trial judge instructed the jury that he is striking the answer, and "you cannot consider that answer for any purpose at all in your deliberations."
Cross-examination continued, and the prosecutor asked Evans the following questions:
[Prosecutor]: And you also stated that you had an opportunity to speak with somebody from the Public Defender's office, correct? [Evans]: Yes. [Prosecutor]: And when you spoke to that person from the Public Defender's Office, ...