On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-07-2304.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2012 -
Before Judges Grall and Skillman.
A jury found defendant guilty of two counts of armed robbery, in violation of N.J.S.A. 2C:15-1; possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); and possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a). The trial court sentenced defendant to concurrent mandatory extended terms of fifty years imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also sentenced defendant to a concurrent extended fifteen-year term for possession of a firearm for an unlawful purpose and a concurrent seven-year term for possession of a handgun without a permit.
Defendant's convictions were based on an armed robbery committed on the streets of Newark during the evening of September 15-16, 2005. The two victims, Jose Simoes and Luis Silva, walked from a bar to Silva's car. As they approached Silva's car, a man Simoes and Silva later identified as defendant was sitting on the hood.
Silva unlocked his vehicle by remote control. Defendant inquired as to whether the vehicle was Silva's, and Silva confirmed that it was. As Silva began entering the driver's side front door of the vehicle, defendant lifted his t-shirt to reveal a weapon, which Simoes later identified as a .38 caliber silver revolver tucked into the waistband of defendant's pants. Silva managed to lock himself inside his vehicle and, despite the fact that defendant was pointing a gun at him and "scream[ing]" for Silva "not to move and not to start the car," Silva drove away, leaving Simoes behind. Silva testified that defendant pulled the trigger of his gun twice in Silva's direction at that time, but it did not fire. Silva drove to a nearby intersection, called the police from his cell phone, and then returned to the scene, where he witnessed defendant pointing a gun at Simoes and removing items from his pockets.
Simoes testified that, upon Silva's escape, defendant approached him and pressed the gun to his stomach, demanding that Simoes turn over his money. With the gun still in place, defendant reached into Simoes' back pocket and retrieved his wallet, containing between $100 and $120. Defendant next attempted to remove Simoes' watch from his wrist but struggled with the lock. Simoes shook his wrist, causing defendant to drop the money he held in his left hand, and defendant then pulled the trigger of his gun twice, but it did not fire. As defendant retrieved the fallen money, Simoes broke away, running to the next block where Silva was waiting in his vehicle. Defendant, unsuccessfully attempting to fire at Simoes twice more as he escaped, ultimately fled into the door of a nearby building.
After the robbery, both victims gave descriptions of the perpetrator to the police, which included that he was wearing a red shirt with numbers on it. Both victims made identifications of defendant from photographic arrays the police showed to them shortly after the crime and identified him in court at trial.
The State also presented testimony by Michael Thomas, a security guard in an apartment building near the scene of the robbery, who said that he saw defendant, who he knew, in the area around the time of the robbery wearing a red football jersey with white numbers on it, and Yvette Mendez, a resident of an apartment near the scene of the robbery, who said that defendant came to her apartment around midnight, asked her for a bag, put a folded red jersey in it, and later left with the bag.
Defendant was arrested in his apartment after Silva and Simoes identified him in the photographic arrays. At that time, a red jersey with the number 20 was found in the apartment. Thomas and Silva testified that this shirt looked like the shirt defendant had been wearing at the time of the robbery.
Defendant did not testify or present any witnesses at trial.
Defendant presents two arguments regarding the armed robbery of Silva. First, he argues that the evidence was insufficient to support this conviction. Second, he argues that even if the evidence was sufficient, the trial court did not properly instruct the jury regarding this offense. We conclude that the evidence was sufficient to support defendant's conviction for robbing Silva but that the jury instruction regarding this offense was inadequate. Therefore, we reverse defendant's conviction for that robbery and remand for a new trial.
Defendant's arguments regarding his conviction for robbing Silva are based on the fact that Silva drove away from the scene immediately after defendant pointed a gun at him and that defendant did not take any of Silva's property or demand that Silva give him anything.
Robbery is proscribed by N.J.S.A. 2C:15-1(a), which provides that:
. . . A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of ...