On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-08-1366.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 2011
Before Judges Fuentes, Graves and J. N. Harris.
Defendant Shavar T. Bethea was tried before a jury and convicted of first degree robbery, N.J.S.A. 2C:15-1; second degree possession of a firearm for unlawful purpose, N.J.S.A. 2C:39-4a; third degree unlawful possession of a BB gun, N.J.S.A. 2C:39-5; and third degree hindering apprehension, N.J.S.A.
2C:29-3b(4). The trial court sentenced defendant to an aggregate term of twelve years, with an eighty-five percent period of parole ineligibility and five years of parole supervision, both pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant now appeals arguing, inter alia, that the court violated his constitutional right to a fair trial by restricting his attorney's cross-examination of witnesses against him, limiting his attorney's summation to the jury, and failing to instruct the jury on the State's failure to record out-of-court statements made by co-defendants. We are not persuaded by defendant's arguments and affirm.
We derive the following facts from the record developed before the trial court, which includes the testimony of the two co-defendants who had previously pled guilty to first degree armed robbery, pursuant to a negotiated agreement with the State.
On the night of March 22, 2008, at approximately 9:00 p.m., Joseph Van Saders, Andrew Obuobisa (both eighteen years old), and twenty-four-year-old defendant were "hanging out," watching television in Obuobisa's bedroom, located in the attic of his house in Englewood. At some point, Van Saders decided to order pizzas from "Papa John's." Because they did not have the money to pay for the food, defendant suggested they rob the delivery man by taking the pizzas and his money.
In furtherance of this plan, when the three men placed the pizza order, they gave an apartment complex located across the street from Obuobisa's house as the delivery address. Papa John's employee Richard Formisano arrived at the apartment complex bearing the pizza delivery at approximately midnight. He parked his vehicle and began walking to find apartment H, which was located in a secluded area near woods and a stream. Van Saders was at the location waiting for the delivery; defendant and Obuobisa were hidden around the corner, ready to rob Formisano at the moment he arrived at the doorstep.
When Formisano arrived, he saw Van Saders by the door of the apartment. Van Saders motioned for him to approach as he pretended to reach in his pocket to pay Formisano. At this point, Formisano felt something pressing against his back and heard a man's voice, subsequently identified as Obuobisa, telling him to put his "hands in the air." Formisano did as commanded, raising his hands and dropping the pizza boxes to the ground. It was later discovered that the object Formisano felt pressing against his back was a BB gun held by Obuobisa.*fn1
According to Formisano, a third man (not Van Saders or Obuobisa) searched his pockets and demanded money. Formisano handed him his wallet in an attempt to distract him from searching his top pocket, where he had several hundred dollars - the proceeds of his paycheck that he had just cashed. ...