On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-11-0994.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued January 9, 2012 --
Before Judges Sapp-Peterson and Ostrer.
Defendant was convicted in absentia of first-degree robbery with a simulated deadly weapon, N.J.S.A. 2C:15-1. He was sentenced to a term of eighteen years, with a parole ineligibility term of eighty-five percent, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He appeals, challenging the sufficiency of the evidence, and asserting the trial court erred in refusing to hold a Wade*fn1 hearing, and in admitting evidence that defendant previously committed thefts against similar victims. We reverse.
According to the evidence presented at trial in April 2010, which was conducted in defendant's absence,*fn2 defendant was enlisted by a prostitute to rob her customer. The three trial witnesses were the prostitute Lauren O'Donnell, the victim Wanho Be,*fn3 and Elizabeth Police Officer Paulo Fidalgo.
The trial evidence reflected that Be stopped to hire O'Donnell as he was driving through Elizabeth on his way home on July 22, 2009. A salesman, Be said he had "roughly close" to $1700 in his pocket. He agreed to pay O'Donnell $30 for her services. Before checking into a nearby motel, Be returned to his car to secrete his wallet under the seat. O'Donnell accompanied him, and observed that Be was carrying a significant amount of cash.
At the conclusion of their interactions in the motel,*fn4
O'Donnell borrowed Be's cellphone, claiming she needed to call a child she had to pick up. She had actually called defendant, who directed her to a nearby location. After the phone call, O'Donnell asked Be to give her a ride to the specified location. He agreed and she directed him to a spot eight to ten blocks away, near a Wendy's restaurant.
As they approached a railroad overpass, O'Donnell threw the transmission into park and removed the ignition key. Then, a man in a tank-top, later identified as defendant, approached the driver's side as Be tried to retrieve the key from O'Donnell. Defendant attempted to enter the vehicle. A struggle ensued.
Soon, O'Donnell exited the car, and defendant took her place. Be was fearful defendant would harm him, although no weapon, real or simulated, was shown or mentioned at that point. Be exited the vehicle. Then defendant reached under the car seat, removed Be's wallet and exited the vehicle, too.
Standing a few feet away, Be then pleaded with defendant to return his money. Defendant removed the cash, placed it in his pocket, and tossed Be's wallet to him. As defendant walked twenty feet away, near the railroad overpass, Be followed and continued to plead for the return of his money.
"At that point," Be testified, "he showed me something covered with a towel and I didn't know what was in the towel but he motioned like this, like this, to - as if to - asking me to just - to just go in the car . . . ."*fn5 Be described the towel as larger than a hand towel, but thinner. He said defendant pulled the towel out of his pocket. Be testified the towel was on defendant's hand. He said, "The towel was - something like as if it was pointing at me." Be explained that defendant "motioned to me to - to be on my way . . . ." Apparently demonstrating for the jury, Be testified, "he kind of had it like this. On his right hand." Although he agreed the towel was "very thin," it "was definitely protruding." When asked to clarify, Be said "the towel was - something like as if it was pointing at me."
Be returned to his car and drove around the block in pursuit. He spotted defendant and O'Donnell on bicycles. In the meantime, Be had also called 911 to report the theft and his pursuit. Defendant and O'Donnell left the bicycles and disappeared around a house. Be continued to drive around the area. Then, defendant appeared again. "I was in the car and he again pull out the towel, the second time . . . . It was a white towel and then he kind of like this with the white towel."
According to a fair reading of the transcript, it appears Be was less certain what was under the towel when first displayed than when he saw it a second time. Indeed, Be's continued pursuit of defendant supported the notion that at that point, at least, he was not entirely convinced defendant was armed. But when defendant displayed the towel a second time after Be continued to pursue defendant, Be more firmly believed a weapon was concealed by the towel. That is when Be sped off.
The following exchange took place, referring to defendant's display of the towel the second time:
Q What did you think at that point?
A Well, I - I just sped off. Just -
A Because - but I sped - because - well, I was in the car. I mean I didn't want to be fired, you know, I mean didn't want to be fired upon.
Q Did you think he had a gun?
A Yeah. I mean that was the second time he - I mean he - he kind of - so I just sped off and then I told the police, please, the person is in this area. And then I went around the block and then I finally saw a cruiser on my way, and I stopped him . . . . [(emphasis added).]
The assistant prosecutor had asked Be what he thought was under the towel after he described how defendant first displayed it. Be initially said he did not know what was under the towel. Be had testified defendant used the towel as if "asking" him to return to his car, as opposed to threatening him with mortal harm. Although Be ultimately stated he believed a gun was under the towel, his interrupted response - particularly viewed in the context of the whole examination - did not clearly reflect whether Be actually formed the belief it was a gun at its first display, or formed the opinion after the towel was displayed a second time.
The following questioning occurred regarding the first display:
A Well, he motioned like this, like - like as if just go in the car, like -
Q Okay A - as I don't know what would be in that towel so I -
A - I - I was really fear at that moment if under - for me at that - it was like money and - and you know and then - and - and -
Q What - what did you believe was in the towel at that time?
A So at the same time I - I knew that my - that my car could be disabled, too.
Q Well, let's back up there.
Q What did you believe was in the towel, if anything? [(emphasis added).]
At this point, Be responded he believed it to be a gun, then began to explain the impact of the two displays of the towel, but was interrupted. Be stated: "I believe it to be gun. I mean you know he - he kind of motioned, that was the first time and then he motioned again at the later time so - "
The assistant prosecutor interrupted and summarized the answer, and then asked a different question. "So he makes this motion to you, you believe it might be a gun, what happens next?" On cross-examination regarding the first display of the towel, Be stated that he did retreat to his car. "It wasn't worth it for me at that point to - to go after the money. There was no gun maybe, or whatever is under there, and the money I would not go - I mean the money was important to me - " Be admitted that he then pursued defendant by car. (emphasis added).
The following exchange on re-direct supports the view that Be more firmly concluded the towel concealed a gun upon its second display:
Q Mr. Be, so we're clear, when the black male made that motion with the towel over his hand, did you believe that he had a gun?
A I - I - to be quite frank it could be - it could be anything. I mean at that point things went so quick as I figure the money wasn't worth it. I just figured I - I was hoping that I could get in my car and - which I did quickly into my car and - and tried to call the police because I had still my cell phone at that time.
Q Did you believe he had anything under that towel?
A Yes. But that was just the first time.
A Sorry, the second time. Yes. Yes. The second time he really like - it was like around the ...