On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-08-02874.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Parrillo and Sabatino.
Tried by a jury, defendant, Jermaine Bell, was convicted of first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; third- degree unlawful possession of a firearm, N.J.S.A. 2C:39-5c(1); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and conspiracy to commit robbery, N.J.S.A. 2C:5-2; N.J.S.A. 2C:15-1. He received an aggravate term of fifteen years imprisonment, with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fees and penalties were also assessed. Defendant appeals, and we affirm.
According to the State's proofs, defendant conspired with co-defendants, Kyiem Walters and James Hall, to rob the Kentucky Fried Chicken (KFC) outlet in Pennsauken, where Hall worked. The two met a few days before and agreed to rob the KFC at the end of Hall's shift on April 26, 2009, which was a Sunday, the most profitable day of the week and a time when the manager would not be able to deposit the proceeds in the bank. At the meeting, defendant agreed to hold the gun during the robbery, put Hall in the freezer, remove the employees' cell phones, order everyone to get down, take the money and leave. Walter would accompany defendant and Hall arranged to keep in contact via phone, deleting each call after it was made.
The robbery was executed according to plan. About ten minutes after the 10:00 p.m. closing, defendant entered the KFC brandishing a gun, and wearing a bandana over the bottom half of his face. He ordered everyone present - the store manager Arlen Lopez, employees Anthony Perez and Hall, and one other person - down on the ground. While defendant pointed the gun at Lopez, Walters, the darker-skinned robber who remained at the door, ordered Lopez to empty the safe. When Lopez explained that the safe was locked, the robbers took $92 from the cash register and fled.
Police responded to Lopez's call and upon arrival were pointed in the direction the robbers fled. Walters had quickly changed clothes before continuing the flight across Route 130 and defendant had taken off his shirt, wrapped the gun in it, and threw it into the Cooper River tributary (check this out). The pair separated and proceeded en route toward Camden. Meanwhile, police had been given a description of the two by Perez and Lopez, the latter of whom had described the robber with the gun as light-skinned and with braided hair. The officers caught up with the men and detained them while Hall, Lopez and Perez were individually brought to the location for a show-up identification.
Hall told the police that he could not see the suspects, but that one of the robbers had braids in his hair. Lopez identified both men as the robbers. As defendant was removed from the patrol car and illuminated with a light, Lopez said "it's got to be him," referencing his braids and light skin.*fn1
Defendant and Walters were then arrested and transported to police headquarters where defendant denied any involvement in the robbery. Hall was arrested the next day, admitted his participation as the insider and eventually pled guilty to conspiracy to commit robbery, as did Walters. Both men implicated defendant in the scheme. The day after the robbery, police located the gun and discarded clothing. The gun was found in the tributary, wrapped in a shirt with a logo bearing the name of the company where defendant was employed. (Check this out)
On appeal, appellant raises the following issues
I. IT WAS ERROR NOT TO SUPPRESS THE OUTOF-COURT SHOW-UP IDENTIFICATIONS OF MR. BELL.
II. DEFENDANT'S MOTION FOR AN AQUITAL WAS WRONGFULLY DENIED.
III. IT WAS ERROR NOT TO ALLOW DEFENDANT'S ALIBI WITNESS TO TESTIFY AND NOT TO ISSUE A BENCH WARRANT TO REQUIRE MR. PEREZ TO TESTIFY.
IV. DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL.
V. THE CUMATIVE EFFECT OF THESE ERRORS WARRANT A REVERSAL ...