On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-05-0724.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Simonelli and Hayden.
Following a jury trial, defendant Gary Zamudio was convicted of first-degree robbery, N.J.S.A. 2C:15-1a(2) (count one); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4) (count two); third-degree terroristic threats, N.J.S.A. 2C:12-3a and b (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and second-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count five). At sentencing, the trial judge merged counts two, three and four into count one, and imposed a fifteen-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed a concurrent five-year term of imprisonment with three years of parole ineligibility on count five, imposed the appropriate assessments and penalty, and ordered restitution in the amount of $752.11. We affirm.
The victim, Felix Rosa, testified at trial that at approximately 6:45 a.m. on January 24, 2009, he was walking to a coffee shop in Passaic when he noticed a blue Toyota stop near him. Two men, each approximately 5'6" or 5'7" and both wearing black leather jackets, exited the Toyota. There may have been a third man, who remained in the car. Although the two men who exited the car wore black wool ski masks covering their entire heads, Rosa saw that they had skin complexions similar to his Hispanic complexion. One man, who had a teardrop tattoo near his left eye, pointed a gun at Rosa's head and then at his kneecap, and ordered Rosa to give him all of his money or else he would shoot Rosa in the leg. The other man rifled through Rosa's pockets and took his cell phone, Christmas Club book, two un-cashed paychecks, and a wallet containing five credit cards and a passport identification card. After robbing Rosa, the men got back into the Toyota and left the scene. Rosa noticed the license plate number and that the car had a football insignia on the back of it.
The robbery occurred near a police station. Rosa went inside the station, reported the robbery, gave the police the license plate number, and said the getaway car was a blue Toyota. According to the written report of the police officer to whom Rosa reported the robbery, Rosa allegedly said that the skin around the assailants' eyes was black.
Detective John Rodriguez (Det. Rodriguez) of the City of Passaic Police Department testified that the plate number Rosa gave them belonged to a Honda Civic; however, because Rosa insisted that the getaway car was a blue Toyota, they tried variations on the plate number, and eventually found that a similar plate number belonged to a blue Toyota registered to Jose Apuy. Within hours of the robbery, the police located the Toyota, which had a football insignia on it. Rosa identified the Toyota as the getaway car. Det. Rodriguez looked inside the car and saw two ski masks on the back seat. After obtaining Jose Apuy's consent to search the car, the detective recovered the ski masks and a wallet containing a credit card bearing Rosa's name, and Rosa's passport identification card. The masks were reversible -- one side was plain black material and the other side had a pattern; one mask had an American flag pattern, and the other had a flame pattern. Contrary to Rosa's testimony, Det. Rodriguez said that the masks did not cover the entire head, and he did not know if they were wool. The detective did not have Rosa identify the wallet or masks, and the wallet was not dusted for fingerprints. However, there was no dispute that DNA testing confirmed the presence of defendant's saliva on one of the masks.
The police arrested Jose Apuy's son, Dario Apuy (Apuy), on the day of the robbery, and two days later, on January 26, 2009, they arrested defendant, who is Apuy's first cousin.*fn1 At the time of his arrest, defendant was wearing a black leather jacket that matched Rosa's description of the assailants' jackets. Defendant had no teardrop tattoo near his left eye; however, Wilfredo Santiago, who was later arrested for the robbery, had a teardrop tattoo in that location.
Defendant received his Miranda*fn2 rights at police headquarters, and invoked his right to counsel. As Det. Rodriguez was walking defendant into the cell area, defendant saw Apuy and said, "Keep your mouth shut, don't say sh** to the detectives." Defendant moved to suppress this statement. The trial judge denied the motion, holding that defendant did not make the statement in response to any form of interrogation, the police did not prompt or intimidate defendant to make the statement, and the statement was a "blurt out."
After the close of the State's case, defendant moved for judgment of acquittal on all counts based on the discrepancy in Rosa's and Det. Rodriguez's descriptions of the ski masks,*fn3 and because Rosa did not identify the masks as the ones the assailants wore. Citing State v. Reyes, 50 N.J. 454 (1967), the judge denied the motion, concluding it was for the jurors to evaluate the discrepancy, and there was other circumstantial evidence on which the jury could reasonably find defendant guilty beyond a reasonable doubt on all counts, such as the wallet found in the getaway car, and defendant's "blurt out," which the jury could have concluded was an expression of consciousness of guilt.
The jury rendered its verdict on June 29, 2010. On August 30, 2010, defendant filed a motion for judgment of acquittal notwithstanding the verdict, or alternatively, a new trial. The judge denied the motion because it was untimely filed. This appeal followed.
On appeal, defendant raises the following contentions:
THE TRIAL COURT SHOULD HAVE GRANTED THE MOTION FOR JUDGMENT OF ...