On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-01-0071.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Reisner.
Defendant Christopher Dekowski appeals from his conviction for first-degree armed robbery, N.J.S.A. 2C:15-1b, and from the sentence of thirteen years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. On the morning of September 27, 2007, defendant robbed a bank by handing a teller a note demanding money and stating that he had a bomb; there was no evidence that he actually had a bomb or any other weapon. On this appeal, he contends that the State failed to prove that he was armed with a real or simulated deadly weapon and therefore his conviction must be reduced from first-degree robbery to second-degree robbery. He also contends that his sentence is excessive, particularly in light of his diagnosed mental illness. We reverse the first-degree robbery conviction, and remand for entry of an amended judgment of conviction (JOC) for second-degree robbery and for resentencing.
This was the most pertinent trial testimony. Lucy Gonzalez, a teller at the bank, testified that she was working in the fourth teller station when a man, whom she thought was a customer, came to her teller station and handed her a note on yellow paper with "red markings." She did not read the note. The man told her to "open the drawer and give me the money." Gonzalez's manager, Anne Beeman, who was standing behind her, opened the cash drawer and gave the man some money, after which he left the bank.
Another teller, Charlene Charles, saw the man and noticed him handing Gonzalez a note. She also heard Beeman asking what denominations he wanted. Charles did not read the note. She observed that the man had a "black case" of the sort that folded up. The man carried it under his arm when he left the bank. She confirmed that the man did not point a weapon at anyone and she told the police afterward that the crime "really didn't affect [her]."
Another teller, Danielle Vanderhorst, was working at the station next to Gonzalez. At some point she noticed a customer who seemed somewhat agitated and "pacing back and forth." She described him as "a Caucasian male" wearing a "baseball cap with sunglasses on, sweatshirt, jeans, black shoes" and carrying "a portfolio, like a portfolio case." When the prosecutor asked her for a further description of the "portfolio case," Vanderhorst testified that it was "[l]ike a business portfolio that you -- they may have had like a -- a note pad or something in it like . . . I don't know how else how to explain it. It wasn't a binder but like [a] . . . portfolio case maybe." She saw the man hand Beeman a note and saw her hand him some money from the cash drawer. From the man's odd demeanor, the way he was reaching over the counter, and the fact that he handed over a note, Vanderhorst believed he was carrying out a robbery. She did not hear the man say anything and did not see any weapon in his possession.
Anne Beeman, the branch manager, testified that on the morning of September 27, she was working at her computer at a desk in the bank lobby, when a co-worker pointed out a man in the teller line who didn't "look right." Although it was a warm day, this man was wearing a long sleeved shirt, a baseball cap, and sunglasses. The co-worker told her she had seen the man kneeling next to the vestibule doors, which could be locked with keys located at the bottom of the doors. Beeman thought that was unusual, and the man looked like a suspicious character. Beeman told the co-worker that she would stand behind the tellers and cough if she saw anything "out of the way." If Beeman coughed, the co-worker was to call the police.
From her vantage point behind the tellers, Beeman saw the man hand Gonzalez a note. At that point, Beeman intervened and told Gonzalez she would handle this transaction. Beeman asked the man what he wanted and he told her "to read the note." The note said "that he wanted 100's, 50's, and 20's, and that he had a bomb, and not to do anything." Beeman described the note as looking like "it was torn from a . . . binder, so it was ragged . . . on top." Beeman became "very concerned for the customers" and for herself and her employees "in case he did really have a bomb." However she testified that "I didn't have a way of knowing if he did or not." Beeman behaved as though "he did [have a bomb], but . . . didn't know if he did or not."
According to Beeman, when she read the note, she tried to delay the transaction until the police could arrive. As she was stalling, the robber "yelled at [her] to give him the money." She asked him if he would accept smaller denominations and if she could put the money in an envelope. He agreed, and she handed him an envelope with about $500 in it. At that point, he "reached over the counter and took the note back, and left the building." Beeman and a male co-worker, Marcelo Pirez, followed defendant outside "to see where he went just to see if we can trace" his route. They followed him to Wood Avenue, and they then returned to the bank.
With Beeman narrating, the prosecutor showed the jury a video from the bank's security camera. At one point in her narration, she explained to the jury that defendant "took a piece of yellow paper out of that brown or black thing he was carrying and handed it to Lucy [Gonzalez]." Asked if she recalled if the robber "was carrying anything else with him aside from the note," Beeman responded that "[h]e had something that was like a briefcase size, black, it looked like leather." On cross-examination she confirmed that she saw "something similar to that black folder" in his possession. At no point did she testify about what, if anything, she thought might be in the folder or case. Nor did she testify that defendant gestured to, or made any mention of, the case he was carrying. On cross-examination, she agreed that he did not "brandish any weapon of any sort." On re-direct, she answered "yes" to two leading questions, agreeing that when she "received that note" she believed "that there could be weapons" and "that there was possibly a bomb."
In his testimony, Pirez confirmed that, like Beeman, he believed that defendant looked suspicious when he entered the bank, because he appeared nervous, wore sunglasses inside the bank, wore his hat with the brim low over his face, and seemed to be holding the sleeve of his shirt over his hand. Pirez also noticed defendant kneeling by the front doors "where the locks are located." Later in his testimony Pirez mentioned in passing that defendant was "holding . . . like a small briefcase," but his testimony did not connect the briefcase to any possible weapon defendant might have had. It was clear from his testimony that what made Pirez concerned about defendant was his nervous demeanor, odd clothing, and possible ...