On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-05-01804.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Maven.
Defendant Kelvin Williams appeals from a jury verdict finding him guilty of first-degree robbery, N.J.S.A. 2C:15-1.
The trial judge sentenced defendant to fourteen years of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At the conclusion of the State's case, arguing that the evidence was insufficient to warrant a conviction, defendant moved for an acquittal or a directed verdict, directing the jury to find him not guilty of the charge of first-degree armed robbery. R. 3:18-1. The judge denied the motion. We now conclude that the judge erred and improperly denied defendant's motion for acquittal. We reverse and remand for the entry of a judgment of acquittal.
These are the facts that were presented during the State's
case-in-chief. On October 8, 2008, at approximately 10:42 a.m., a
black male, later identified as defendant, entered the Sun National
Bank in Somerdale. He was wearing bright orange pants and a camouflage
hooded sweatshirt with the hood pulled over his head. Aline
Keshishian, an employee of the bank, observed that defendant took his
hands out of his pockets as he entered the bank. Defendant approached
a bank teller, Cheryl Duncan, told her he had a bomb*fn1
and demanded $7,000,000 dollars. For the
duration of the encounter, which lasted approximately one minute, no
bomb was visible to Duncan; defendant never displayed to Duncan any
indicia of a bomb; and defendant did not gesture or otherwise indicate
where a bomb might be located. In response to defendant's demand,
Duncan stated that "she did not have that kind of money." Defendant
replied that Duncan was to give him whatever was available. Duncan
gave him the money in her drawer, which was later determined to be
$552. This sum did not include any "bait money," or money bank
employees utilize during robberies as traceable money. According to
Duncan, she failed to follow this protocol out of fear. Upon receipt
of the money, defendant left the bank and got into a maroon taxi cab,
which drove away from the bank.
Although Duncan was separated from defendant by protective glass during the encounter, defendant frightened her. However, she did not initially believe that he had a bomb. She stated, "I think it's silly for someone to blow themselves [sic] up for money. But, if you're crazy enough to do something like that, there is a very good possibility that you have a bomb[.]" She also said that although she did not observe a bomb, defendant was wearing "[a] big hooded sweatshirt."
After defendant left the bank, Duncan called 9-1-1, notifying the police of the robbery and describing the taxi cab in which defendant had departed. Keshishian locked the door of the bank, and Duncan activated the bank's silent alarm. When the police arrived, Duncan provided the officers with an account of the robbery and defendant's departure. Keshishian told the officers that defendant was wearing a camouflage hooded sweatshirt, orange pants and what appeared to be a white hospital bracelet on his wrist. Smith relayed the information to all responding officers via Central Communications.
Officer Susan Moran of the Lindenwold Police Department located the taxi cab Duncan had identified. The taxi cab driver, Muhammad Shahzad, corroborated the bank employees' descriptions of defendant as a black male clad in orange pants and a hooded sweatshirt. Shahzad notified Moran that defendant hired him to drive to the bank and that, after stopping there, defendant asked to be dropped off at the Boscov's entrance to the Echelon Mall, where defendant paid him the $10 fare.
Investigator Herrington of the Voorhees Township Police Department responded at Boscov's in the Echelon Mall. While walking towards Boscov's in the mall, Herrington observed a black male matching defendant's description, approximately five feet and ten inches in height, with a beard and a thin build. However, the man was wearing jeans, a white- and blue-striped collared shirt, and a baseball hat; he was carrying a camouflage hooded sweatshirt in his hand. As soon as the man made eye contact with Herrington, he looked away quickly and entered Spencer's, a store in the mall located two storefronts away from Boscov's. Herrington entered Spencer's, observed defendant, approached him and informed him that he matched the description of an individual who had just robbed the Sun National Bank in Somerdale. Herrington took hold of defendant's left arm, and Lieutenant Slack, who had arrived as backup, took hold of defendant's right arm, which caused defendant to drop the hooded sweatshirt. The sweatshirt had concealed a white transparent plastic bag that contained $481 in cash, and when the sweatshirt fell, the plastic bag was revealed. Defendant had a white hospital bracelet on his right wrist that bore his name.
On defendant's person, the police found a receipt from Pay Half, a store located next to Boscov's in the mall. Carol Renzulli, the assistant store manager of Pay Half, recalled seeing, at approximately 10:49 a.m., via the store's live-feed video surveillance system, that the cashier was interacting with an individual not shown in the video. Shortly thereafter, Renzulli noticed clothing in the trash can near the store's cash register. In particular, Renzulli observed orange "scrub-like" pants and a white t-shirt. Renzulli informed mall security of her observations, and a Voorhees police officer collected the items from the store. The receipt recovered from defendant indicated that a pair of pants and two shirts had been purchased at Pay Half for a total of $60.98 and that the payment had been rendered in cash.
The police transported defendant to the bank for identification. Duncan, who stood inside of the bank at the drive-through window, observed defendant, who was standing outside in the parking lot. Once defendant was brought closer to the window, pursuant to Duncan's request, she informed the police that defendant was the ...