On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-05-0612.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Kennedy.
Defendant Victor Baez was tried before a jury, and found guilty on six counts of first-degree robbery and other offenses.
Defendant appeals from his convictions and the sentences imposed. For the reasons that follow, we affirm defendant's convictions, reverse the sentences imposed on the robbery convictions, and remand the matter to the trial court for re-sentencing.
We briefly summarize the relevant facts. On December 10, 2006, Emin Odabasi (Odabasi) and Nuri Savas (Savas) were working at a Valero gas station and convenience store in Paterson. Around 4:00 a.m., Odabasi went outside to smoke a cigarette when a red vehicle driven by a woman pulled up. Odabasi and Savas recognized the woman. She asked for gasoline. There was a passenger in the front seat of the car. Savas started to pump the gas.
At the same time, two men approached the gas station on foot. Odabasi recognized defendant and Mark DeJesus (DeJesus) even though they were wearing masks. Defendant "pushed" a knife towards Savas. Savas attempted to evade it, but the knife sliced his finger and it tore his jacket. Defendant demanded money and Savas gave him $300. Meanwhile, DeJesus approached Odabasi. He had a black handgun, which he placed against Odabasi's body. Dejesus demanded money and Odabasi handed him approximately $3,300.
Following the robbery, defendant and DeJesus fled on foot. The woman drove off without paying for the gasoline. She was later identified as Jessica Gonzalez (Gonzalez), defendant's girlfriend. Gonzalez followed defendant and DeJesus. She picked them up and drove to her apartment in Sussex County.
Detective Carmine Pelosi (Detective Pelosi) investigated the robbery of the Valero gas station. Pelosi spoke with Savas and Odabasi, and based on his investigation, Pelosi identified Gonzalez, DeJesus and defendant as suspects in the robbery. The following day, Gonzalez drove DeJesus to Paterson. DeJesus left his gun in the car. He was arrested later that day.
On December 17, 2006, Gonzalez drove defendant and his brother Carmelo Baez (Carmelo) to a gas station in Fair Lawn, which they planned to rob. Defendant wore a mask and used a revolver to rob the gas station. Carmelo claimed that he acted as a lookout. He was wearing a black handkerchief and was not armed. Carmelo said he participated in the robbery because he had no money.
After the robbery, Gonzalez drove defendant and Carmelo to Clifton, where defendant and Carmelo robbed another gas station. Saluddin Modak (Modak) was the only employee working there at the time. Defendant threatened Modak with a handgun, and Modak gave him $1280. Defendant threw Modak to the ground and punched him in the face.
On December 18, 2006, Gonzalez drove defendant and Carmelo to a convenience store in Lodi and parked outside. The store's owner, Rajiv Shah (Shah), was in the store with Manher Pandya (Pandya). Defendant and Carmelo entered the store and Carmelo started punching Pandya. Defendant pulled out a gun, pointed it at Shah and demanded money.
Defendant told Shah to open the cash register. Shah was nervous and he repeatedly hit the wrong button. Defendant told Shah to get down on the floor. Defendant started hitting Shah as Carmelo took money out of the cash register. They also took Shah's wallet, which contained about $400 to $500.
On December 20, 2006, defendant was driving a car in Clifton, with Gonzalez as his passenger. It appears that defendant lost control of the vehicle, which collided with three parked cars before coming to rest. Gonzalez and defendant grabbed their suitcases and fled.
At 8:02 a.m., Officer Jose Padilla, Jr. (Padilla) of the Clifton Police Department (CPD) received a report of the hit and run accident. The report indicated that a man and a woman fled the scene, and the man was wearing a gray, hooded sweatshirt.
Padilla went to the scene of the accident in a marked patrol car. Padilla observed Gonzalez and defendant, who was wearing a gray hat that Officer Padilla described as a "skully." As Padilla drove past defendant and Gonzalez, defendant put his arm out. Padilla interpreted this as a gesture signaling Gonzalez to stop. Padilla drove past them and "looped" around. He then observed defendant and Gonzalez turn around and walk quickly into a yard. Padilla thought that they were attempting to flee. Padilla ran towards them and told them to stop.
After they stopped, defendant bent down and began to unzip a pocket in his suitcase. Padilla drew his weapon and ordered defendant to stop. He ordered defendant and Gonzalez to turn away from him and put their hands on a fence. Padilla called for backup.
From where he was standing, Padilla was able to peer into the open pocket of the suitcase and spotted what appeared to be a weapon. It was a black Smith & Wesson revolver. Backup officers arrived on the scene. Defendant and Gonzalez were handcuffed, read their Miranda*fn1 rights, and placed in separate police vehicles. The officers then secured defendant's and Gonzalez's suitcases.
The Clifton police officers contacted the Paterson Police Department (PPD), because defendant and Gonzalez were wanted in connection with the Paterson gas station robbery. Detective Pelosi and Detective Sergeant Alex Popoz of the PPD responded to the Clifton police station. The Clifton police also contacted the Fair Lawn police because they were aware that a similar robbery had been committed in that municipality.
Fair Lawn Detectives James Corcoran (Corcoran) and Robert Tillie (Tillie) interviewed Gonzalez. She said she and defendant had taken part in the Paterson gas station robbery because they feared DeJesus. She also told the detectives about the robberies of the gas stations in Fair Lawn and Clifton. Detectives Corcoran and Tillie knew of the robbery of the Lodi convenience store and questioned Gonzalez about it. She said that defendant and Carmelo robbed the store.
Defendant waived his Miranda rights and gave a statement to the officers. He admitted he was involved in the Paterson gas station robbery, but said DeJesus had forced him to do so. He then refused to continue the interview. However, on December 21, 2006, when he was about to be transported to the county jail, defendant said he wanted to speak with the detectives about the Clifton robbery.
Defendant again waived his Miranda rights and gave the detectives a videotaped statement. Defendant admitted that he committed the robberies in Clifton, Fair Lawn and Lodi. He stated that Carmelo was involved in all three robberies but Gonzalez was not. Thereafter, the Paterson police located and arrested Carmelo.
Defendant was charged with first-degree robbery, in violation of N.J.S.A. 2C:15-1 (counts one, five, six, twelve, sixteen, twenty and twenty-two); fourth-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(4) and N.J.S.A. 2C:2-6 (counts two, seven, thirteen, seventeen, twenty-one and twenty-three); second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a) (counts three, eight, fourteen eighteen and twenty-four); third-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b) (counts four, nine, fifteen, nineteen, twenty-five and twenty-six); third-degree possession of a knife for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d) (count ten); fourth-degree unlawful possession of a knife, in violation of N.J.S.A. 2C:39-5(d) (count eleven); third-degree possession of a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-10(a)(1) (count twenty-seven); third-degree possession of a CDS with an intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count twenty-eight); and second-degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7(b) (counts thirty-one, thirty-three, thirty-five, thirty-seven and thirty-nine). DeJesus, Gonzalez, and Carmelo were charged as co-defendants.
The State declined to prosecute defendant on counts one through four. The jury found him guilty on counts five through twenty-six. The State agreed to dismiss counts twenty-seven, twenty-eight and thirty-one. Defendant was then tried separately and convicted on counts thirty-three, thirty-five, thirty-seven and thirty-nine.
Defendant waived his right to appear at the sentencing hearing held on November 14, 2008. The court imposed an aggregate sentence of sixty years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.
Defendant raises the following arguments for our consideration:
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL OF CHOICE WHEN THE JUDGE ARBITRARILY REFUSED ...