On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-11-2533.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2012
Before Judges Carchman, Fisher and Baxter.
Defendant Andre Dennis appeals from his June 5, 2009 conviction, following a trial by jury, on charges of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); and second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b) (count eight).*fn1
On count four, the judge sentenced defendant to life imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 (NERA). On count eight, the judge sentenced defendant to a ten-year term of imprisonment, subject to a five-year parole ineligibility term. The judge merged count two into count four, counts one and six into count two, and count five into count eight. The judge ordered that the sentence on count eight be served consecutively to the felony murder sentence. The aggregate sentence was life imprisonment plus ten years, subject to a parole ineligibility term of sixty-eight years, nine months and three days. Finally, the judge ordered that the sentence imposed on the present indictment be served consecutively to an eighteen-year NERA sentence previously imposed in Hudson County on indictment number 06-05-973 on July 22, 2008.
We reject defendant's contention that the trial judge committed reversible error when he refused to redact a portion of defendant's confession in which defendant remarked -- prior to admitting his role in the robbery and felony murder -- that his brother, co-defendant Antoine Dennis, had urged him to tell the truth. We likewise reject defendant's contentions that his sentence was excessive, that the sentence violated his reasonable expectations, that a discretionary extended term sentence should not have been imposed and that the sentence on count eight should have been concurrent, rather than consecutive. We do, however, agree with defendant that the judgment of conviction (JOC) should be amended to conform to the judge's oral pronouncement of sentence, thereby requiring the sentence on count eight to be concurrent to the sentence on count four rather than to count two.
In the latter part of December 2005, co-defendant Angela Pizzarelli*fn2 told defendant and Antoine that Saahron Jones, whom she had met at a bar in Elizabeth, kept $16,000 in cash at his apartment in Asbury Park. Pizzarelli, defendant and Antoine decided to drive from Jersey City, where they lived, to Asbury Park on the night of December 31, 2005 to rob Saahron.*fn3 In accordance with their plan, Pizzarelli knocked on the door of Saahron's apartment. When Saahron opened the door, she pointed a gun at his head and forced her way into the apartment, followed by defendant and Antoine. After ordering Saahron to lie face down on the living room floor, the three bound his wrists with shoelaces.
Defendant found a safe in an upstairs bedroom. He removed the shoelaces from Saahron's wrists, and demanded that Saahron unlock the safe. Saahron was unable to do so, at which time the three retied his wrists, put a pillow over his face and forced him to the floor.
At that point, Jaashawn Jones, Saahron's seventeen year-old brother, began knocking on the apartment door and yelling Saahron's name. Jaashawn came to Saahron's apartment to pick up his gold chain, which he planned to wear that night for a New Year's Eve party. Jaashawn's cousin, Prince Young, who had driven Jaashawn to Saahron's apartment, waited outside in a parked car.
Hearing someone knocking on the door, Pizzarelli directed defendant to open it and pull Jaashawn inside. Defendant complied, pointing a gun at Jaashawn's face as he pulled Jaashawn down to the floor. Because she did not want Jaashawn to be able to recognize her, she directed defendant to pull Jaashawn's jacket over his head. Even though Jaashawn's jacket was over his face, he was able to see his brother lying face down on the floor with his arms tied behind him and a female standing "overtop of him." Jaashawn heard Pizzarelli angrily state that there was "$30,000 in this house somewhere." When Saahron responded that the money was no longer in the apartment because he had lent it to a friend, who had subsequently been robbed, Pizzarelli responded that she "already knew about that."
Moments later, defendant increased the volume on the television and handed Pizzarelli a pillow. She put the pillow over Saahron's head and shot him in the head at point blank range.
Jaashawn waited until after he heard the three exit the apartment building, and then hurried to his brother Saahron, who was lying face down and gagging. Because the three intruders had thrown both his and Saahron's cell phones into a fish tank in the apartment, Jaashawn was unable to call the police. He ran out of the apartment to Young's car screaming, "they killed my brother, drive." Upon arriving at his parents' home, Jaashawn called the police. The police and an EMT squad arrived quickly, but Saahron was already dead of a gunshot wound to his head.
Subsequent investigation led to the discovery of evidence linking Pizzarelli, Antoine and defendant to Saahron's murder. The Asbury Park police arrested defendant on the morning of January 15, 2006 and took him to the satellite office of the Monmouth County Prosecutor's Office in Asbury Park, where the prosecutor's office maintained videotape and recording equipment necessary for the questioning of suspects. Although defendant initially agreed to provide a statement, and did answer some questions, part way through the questioning he invoked his right to counsel and refused to provide a statement until he spoke to an attorney. At that point, the investigators terminated the interview and took defendant back to the police station, where the police allowed defendant to speak to his brother Antoine.
After speaking with Antoine, defendant told the police that he was prepared to "talk . . . again." Defendant's statement to the police about his conversation with Antoine, which forms the basis of defendant's argument on appeal, was recorded on audiotape. The following conversation occurred between defendant and Detective Brian Veprek from the Monmouth County Prosecutor's Office on the afternoon of January 15, 2006:
Q: Ok, Detective Ash and myself had interviewed you earlier this morning, is that correct? [Defendant]: Yes.
Q: And that at a point during the interview you invoked your right to counsel is that correct? [Defendant]: Yes.
Q: Ok, meaning you wanted an attorney present[?] [Defendant]: Yes.
Q: Ok, we had stopped talking to you at that point when you invoked your right, correct? [Defendant]: Yes.
Q: Ok, now later on today some detectives from the Hudson County Prosecutor's Office had come down to Asbury Park to speak to [you] on an unrelated criminal ...