On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-07-1613 in A-0610-08T2 and 07-07-1631 in A-0925-08T4.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Simonelli.
Following a jury trial, defendants Rakim L. Love and I-Born Henderson were both convicted of first degree robbery, N.J.S.A. 2C:15-1; second degree conspiracy, N.J.S.A. 2C:5-2 and 2C:15-1; and third degree aggravated assault, N.J.S.A. 2C:12-1b(1). Love was also convicted of first degree use of a juvenile to commit a crime, N.J.S.A. 2C:24-9. After merger, Love was sentenced to an aggregate prison term of twelve years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Henderson was also sentenced to a twelve-year term subject to NERA. In these appeals, which we have consolidated for purposes of this opinion, each defendant challenges his conviction and sentence. We affirm the convictions and sentences as to both defendants.
This was the most pertinent trial evidence. On December 1, 2006, Henderson was seventeen years old, approximately three months shy of his eighteenth birthday. Love, Henderson's cousin, had turned eighteen approximately one month earlier.
On that date, Christopher McCord went to Al's Deli in Asbury Park to purchase cigarettes and juice. According to McCord's testimony, he had about sixteen dollars in his pocket. After making his purchase, McCord went outside and started unlocking his bike. While he was doing so, defendants approached him from the back and side.
Defendants began pushing him and asking "What do you want?" and "What are you here for?" McCord responded "nothing" and told them he was just in the neighborhood to buy cigarettes. He kept his head down, telling defendants that he was unlocking his bike and trying to leave. McCord testified that Love ordered him to hand over his money, but McCord told Love that he had no money.
At that point, Love took out a gun and said, "now you're going to give me your money." McCord initially thought the gun was a toy because "it didn't look real. It was all scratched up and everything." Although Love pointed the gun at McCord's chest and head, McCord "didn't think [he] was getting shot" although he expected to get beaten up. When McCord again denied having money, Henderson said he had seen him counting his money inside the store, and tried to reach in McCord's pocket. McCord pushed Henderson's hand away, and Love then hit McCord on the back of his head with the gun. Since the gun "had some weight to it," at that point McCord "assumed it was real."
However, he continued to believe he was not going to be shot, explaining:
So I figured, you know, if they were going to shoot me they'd have done it by then and just took the money and ran.
So I figured, you know, I was just going to get beat up. You know, they're going to try to get in my pockets. And hopefully, you know, because the cops patrol that area, I figured, you know, somebody's going to show up eventually, you know. All I had to do is, you know, protect myself and you know, cover up a little bit and I'd be all right.
McCord also believed that defendants would not want to attract police attention with gunfire.*fn1
Defendants continued to wave the gun in McCord's face and demand his money. They "started wrestling [him] to the ground and digging in [his] pockets." They hit him with the gun, as well as with their fists and feet. McCord "kept [his] head down, [and] tried to block what [he] could." Most of the blows he suffered were to his back and ribs, although he was also hit in the head.
McCord managed to escape inside the deli, but Love followed him. Henderson stayed outside and smashed McCord's bike on the ground. While Love stared at McCord, Mohamed Abdoul-Maoula, the deli cashier, asked McCord if there was a problem. Not wanting any additional trouble and believing the altercation had ended, McCord responded that everything was okay, and he left the store. He testified that he did not ask Abdoul-Maoula to call 9-1-1 because he did not want to give defendants a reason to shoot him, and he also was concerned about Abdoul-Maoula's immediate safety and possible later reprisals against his business. At trial, Abdoul-Maoula denied that anything happened in the store that day, and further denied seeing anyone with a gun.
McCord testified that he left the store and walked away, thinking he could reach a nearby location where he knew a police officer usually parked. However, defendants followed and attacked McCord again in front of a parking garage. One of the defendants said "[f]uck it, just shoot him." But instead, they pulled McCord to the ground, dug in his pockets, and kicked, hit, and stomped him. They pulled McCord's pants halfway down to his knees while trying to access his pockets. McCord did not see the gun during the second attack. He recalled that during the second attack, a police car drove up and an undercover officer emerged from the vehicle and rescued him. As soon as he realized he was safe, the stress of the attack caught up with him, and McCord began vomiting at the scene and felt "dazed."
According to her trial testimony, Adriana Hunt witnessed the initial altercation as she passed by the deli, and she called 9-1-1. She testified that she saw two black males, one wearing a red hooded sweatshirt and one wearing a black hooded sweatshirt, pull a small, black gun on a white male and "proceed to beat him up." Hunt identified the assailant wearing the black sweatshirt as the one holding the gun. She explained that the man with the gun put his arm around McCord and pointed the gun at McCord's chest. McCord did not defend himself.
Hunt then saw McCord enter the deli while one of the black men threw McCord's bike on the ground. When McCord left the deli, Hunt continued to watch all three men walk up the street. She testified that the two black men again started punching and kicking McCord while he did nothing to defend himself. Eventually, an unmarked police car arrived, and the assault stopped.
Detective Scott Cholewa of the Monmouth County Prosecutor's office was traveling through Asbury Park on two unrelated cases when he saw defendants and McCord on the side of the road. McCord was half-kneeling on the sidewalk, covering his head, while defendants punched and kicked him. Cholewa sounded his siren, got out of the car, and identified himself.
McCord got up and walked toward Cholewa, while Love and Henderson walked away. Cholewa grabbed Henderson and McCord to search them. He described McCord as "a little bit maybe dazed," and Henderson as "calm." Henderson told Cholewa that he was trying to get money McCord had taken from him. Love watched from about thirty-five feet away. Cholewa saw about five Asbury Park police cars approaching behind Love, but he did not see Love holding a weapon.
Detective Darius Davis, who was a patrolman at the time of the arrest, testified that he was the first Asbury Park Police Department officer to arrive on the scene. He witnessed defendants standing over McCord yelling at him as he crouched on his knees on the ground. Davis, as well as another officer, then-patrolman Alastair Sweeney, testified that Love, who was holding a gun, started to walk away. Davis got out of his car, drew his gun, and ordered Love to "put the gun down" and "get on the ground." Love walked to a grassy area, dropped the gun, continued walking, and only got on the ground when more officers arrived. Henderson got on the ground almost immediately.
Davis took Love into custody. Another officer, Lorenzo Pettway, secured Love's gun, which he believed was a real firearm. The gun "was unloaded. There was no round in the chamber, and there was no magazine in the gun." Officers searched the area and did not find a magazine. As Sweeney placed Love in the back of his car, Love nodded toward a chain link fence and said, "I just picked the gun up from over there."
At trial, the State and defendants stipulated that the gun did not qualify as a firearm under New Jersey law because it was a "starter pistol" and had not been "altered to fire fixed ammunition and/or projectiles."
According to the police witnesses, when they arrived, McCord's "nerves were shot" and he "threw up." Although he told them he did not get a good look at defendants, he identified the man with the gun as a black male with "kind of light skin" wearing a dark jacket. He confirmed to the police that the two men who were arrested were his attackers.
McCord also declined first aid, despite having a bloody cut on his head from where he was struck with the gun. Sweeney described McCord as "seem[ing] to be in shock" and "a bit shaken up." McCord later explained that at the time he made his statement to police, he only was aware of the cut on the back of his head, but the pain of his other injuries set in later. McCord believed that he "probably should have" sought treatment since he had a problem with [his] back every time [he] sat back. It felt like [he] had a broken rib or something. [He'd] get a sharp pain and it would take [his] breath away. . . . [T]he next day [he] figured . . . it's too late so [he] didn't bother going.
Defendant Love told a considerably different story than McCord. According to Love, who testified at trial, McCord was in the deli when Love arrived there with his cousin, Henderson. Henderson stayed in the store while Love waited outside. After about thirty seconds, McCord exited and jogged away. Henderson came outside ...