On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-01-0136.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
Defendant Vernon Johnson was convicted of third-degree shoplifting, N.J.S.A. 2C:20-11b(1) (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); and third-degree attempted shoplifting, N.J.S.A. 2C:20-11b(1) and N.J.S.A. 2C:5-1 (Count Three). He was sentenced to an aggregate term of nineteen years imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 43-7.2. On appeal, defendant challenges various aspects of his trial, asserting unduly suggestive in-court identification and prosecutorial misconduct during summation. Defendant also contests the propriety of his third-degree shoplifting conviction and challenges his sentence for first-degree robbery as excessive. We affirm the robbery and attempted shoplifting convictions, but reverse the third-degree shoplifting conviction, and remand for entry of judgment of fourth-degree shoplifting and resentencing on all counts.
The evidence presented at trial disclosed that on September 15, 2007, defendant approached the customer service desk at National Wholesale Liquidators (Liquidators) in Lodi with a flat screen television and attempted to return it without a receipt. The assistant manager, Diljit Kaur, who was working that morning, informed defendant the store would not issue a refund without a receipt. Defendant claimed to have left the receipt in his car and promised to return with it. Defendant then left the store with the television and did not return. The television was priced at $499 "plus tax." Defendant testified he had purchased the television with cash the previous day, but had lost the receipt sometime after exiting the store. However, upon discovering the television was missing a feature important to him, he sought to return it.
The following day, at approximately 9:00 a.m., defendant robbed a gas station attendant, Job Mose, at a BP gas station in Lodi. Defendant drove into the gas station in a silver Saturn and pulled up to the pump. Mose requested that defendant open the gas cap. Defendant instead exited the car and demanded money from Mose. Mose repeated his request and defendant returned to his car and retrieved what appeared to be a gun, wrapped in a white plastic bag. Defendant reached into Mose's left pocket and removed a wad of cash, after which he sped away. Mose immediately called the police and reported the incident. He described the perpetrator as a light-skinned black man of approximately 160 pounds driving a silver Saturn with a partial plate number of WL13L.
On September 17, at approximately 12:15 p.m., defendant returned to Liquidators and approached the customer service desk with a larger television priced at $699. When defendant attempted to return the television without a receipt Kaur recognized defendant and summoned the manager and security. An argument ensued and defendant ran from the store without the television. Store employees observed defendant drive off in a silver Saturn, with license plate number WBL13S, and relayed this information to the police.
The police determined that the silver Saturn was owned by Enterprise Rent-a-Car and had been rented to Hackensack resident Lisa Smith on September 12. The Saturn was found parked near Smith's apartment on September 18. The day before the police located the vehicle, Smith had reported to police that the Saturn had been stolen by defendant, her boyfriend, who had disappeared with the vehicle "going into [September] 12th[,] into the 13th[,]" and had not been seen since.
The police knocked on Smith's apartment door and defendant answered. The police informed defendant they were investigating shoplifting incidents at Liquidators. Defendant replied that "he thought [they] were [there] investigating an incident that took place at the BP gas station [in] which he . . . slapped a man because he took his money." Police took defendant into custody. Police searched the trunk of the Saturn, finding a multi-colored toy cap gun next to a plastic bag.
At trial, Smith testified defendant took the car "going into [September] 12th[,] into the 13th[,]" and did not return until the morning of September 18. Defendant offered an alibi witness, Karl Hall, who testified defendant spent the entire day with him in New York on September 16, the day of the robbery. Defendant denied using the Saturn on September 16, and testified that when he returned home from spending the day with Hall, he found the interior of the car to be in disarray, leading him to believe the car had been loaned to Smith's nephew while defendant was away. Defendant also denied telling the police he thought they were at his apartment to investigate a confrontation he had with a man at a BP gas station.
During his direct examination, the prosecutor asked the gas station attendant, Mose, if the robber was present in the courtroom. After being permitted to walk around the courtroom, Mose said he could not identify the robber. The following exchange transpired:
Q I'm going to ask you to look around the crook [sic], look everywhere. Do you see the person who was involved in this incident with you?
A You want me to walk around?
Q No. You can look around.
THE COURT: See if you see the person. You can stand up if you wish.
[ASSISTANT PROSECUTOR]: If you need to get down[,] it's okay. You can look anywhere you want.
THE WITNESS: Can I go back there? THE COURT: Yes, you may.
[ASSISTANT PROSECUTOR]: Look all the way around. Anywhere you want. If you can't do it[,] that's okay too. If you don't see the person[,] you have to tell us that too.
THE COURT: Be careful coming back up on the witness steps. The question is, Mr. Mose, do you see the person who was in your station that day?
Q Is it that you're sure he's not here or that it's been too long?
A You know[,] it's three years down the line and this is something that happened [in] like five minutes.
After defense counsel cross-examined Mose, he was excused from the stand. Shortly thereafter, the State ...