On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3570.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2012 --
Before Judges Messano and Yannotti.
Defendant Calvin Garnett was tried before a jury and found guilty on three counts of first-degree robbery and other offenses. He appeals from the judgment of conviction entered by the trial court on June 4, 2010. We affirm.
Defendant was charged with three counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one, three and five); three counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b) (counts two, four and six); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight); fourth-degree unlawful possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count nine); fourth-degree unlawful possession of hollow-point bullets, N.J.S.A. 2C:39-3(f) (count ten); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count eleven). The court granted the State's motion and dismissed count nine. Defendant was tried before a jury on the remaining charges.
At the trial of this matter, the State presented evidence which established that at approximately 1:45 a.m. on July 27, 2008, John Williams (Williams), John Johnson (Johnson) and Siraya Timothy (Timothy) were sitting in Johnson's car on Melville Place in Irvington. Williams was in the driver's seat. He was talking with Timothy, who was seated in the back seat. Johnson was asleep in the front passenger seat.
Williams noticed an African-American male walk toward the car and then past it. He also saw a "shadow" in the rearview mirror. There was a tap on the window, and Williams turned to his left. He observed an African-American male who was wearing a white shirt with a dark-colored handkerchief over his nose. The man had shoulder-length dreadlocks and was holding a black, semi-automatic gun, which he used to tap on the window.
The man pointed the gun at Williams and told him to hand over money, jewelry and any cell phones. The handkerchief fell several times, and the perpetrator's face became visible. Williams handed over a silver-colored chain with a cross, and Timothy gave him six dollars. The man threw Timothy's money back inside the car. Johnson awoke and Williams told him what was happening. Johnson gave the man his cell phone.
Williams and Johnson tried to contact the police using a device in their car, but the device was not working. They decided to take Timothy home. As they were on their way to Timothy's house, they saw the perpetrator walking along the street with two other persons. Williams saw that the perpetrator was wearing his chain. Johnson obtained another cell phone and called the police. The dispatcher told the victims they should go to a nearby fast-food restaurant because an off-duty police officer was at that location.
When they arrived there, the victims reported the incident to the officer, who informed police headquarters of the physical description of the perpetrator. Patrol units were directed to respond to the location where the suspects were last seen. Patrolman Barry Zepeda (Zepeda) was on patrol that evening. He proceeded to the place where the suspects had been seen.
Zepeda observed three African-American males walking away from him. One of the individuals matched the description of the perpetrator that he had been provided. Zepeda turned his police vehicle around, and he asked another unit to respond to the scene to provide back up. Zepeda drove up and ordered the three men to stop. Two of the men stopped but a third male, who matched the description of the armed robber, began running away.
Another patrol unit arrived. One officer remained at the scene, while Zepeda and another officer chased the suspect into the basement of a building. In a basement apartment, the officers saw the suspect bend down near a bookcase. Zepeda apprehended the suspect and the other officer recovered a 9 millimeter, black, semi-automatic handgun, which contained eight hollow-point bullets.
Johnson went with the police for the show-up identification. Three African-American males were standing by a fence and Johnson positively identified defendant as the man with the gun who robbed the occupants of the car earlier. Johnson was taken to Irvington police headquarters, where he gave a statement to a detective.
Johnson additionally identified photographs of the necklace, handgun, and bandana. Johnson also identified defendant as the perpetrator from a photograph. Several days later, Williams gave a statement to the police. He identified the gun used by the perpetrator, as well as the bandana he had been wearing. Williams was shown a photographic array, ...