On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-09-0508.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and St. John.
Defendant Jovone L. Gordon appeals from a jury verdict finding him guilty of first-degree robbery, N.J.S.A. 2C:15-1, and third-degree theft, N.J.S.A. 2C:20-3. The trial judge sentenced defendant to fifteen years of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the robbery and a concurrent term of four years for the theft. The judge charged the jury instructing them on the elements of first-degree and second-degree robbery. The jury convicted defendant of first-degree robbery, after concluding he was armed with a deadly weapon. On appeal, defendant challenges the denial of his motion for acquittal and identifies what he suggests were trial errors warranting reversal.
We conclude the State's evidence was insufficient to sustain a conviction for first-degree robbery and the court erred in denying defendant's motion at the conclusion of the State's case. We reverse and remand for the entry of a judgment of acquittal for the first-degree armed robbery conviction and amendment of the judgment of conviction to reflect the conviction of second-degree robbery. We also remand for sentencing.*fn1
The trial record reveals that on April 24, 2009, defendant entered the Harvest Community Bank in Pennsville and asked the bank manager about opening an account. The manager referred him to Sherry Weiss, the head teller. Defendant asked Weiss about obtaining a mortgage, but then acknowledged that he did not have any identification and proceeded to leave. However, he walked over to another teller, Ann Gladhill, told her he had a gun, and ordered her to give him money.
Donna Joe Bunting was working at the drive through window when defendant approached Gladhill. She heard defendant tell Gladhill he had a gun and watched as Gladhill put cash into a bag. Gladhill asked Bunting for additional money and she turned over large bills to defendant. Both Bunting and Gladhill included "bait money" in the bag they turned over to defendant. The "bait money" included several twenty dollar bills, the serial numbers of which were prerecorded and kept in the bank. A security camera recorded defendant in the bank, but did not show the interaction between defendant and Gladhill.
At the same time, an off duty police officer was in the banking lot and noticed a dark Crown Victoria. He became suspicious when he noticed one man in the driver's seat and another man in the back seat. He became more concerned when the car left at a high rate of speed. He followed the car for a short time and wrote down the license plate number. When he returned to the bank parking lot, he realized that a robbery had taken place and he related what he had seen to detectives on the scene. The registration for the car belonged to Kareem Sashier from Chester, Pennsylvania. The Chester police were notified and an officer was sent to look for the car. The officer found the car parked near the address given for Sashier, waited about ten minutes, and saw an African-American male enter the car and drive away. The officer pulled the car over and arrested the driver who was defendant. A cell phone and a large amount of cash were seized. Some of the "bait money" was among the bills seized.
Ultimately, defendant admitted to committing the robbery. He even wrote out an apology to the bank employees. However, when defendant testified on his own behalf at trial, he denied most of the State's case, including his confession. Defendant stated that his father gave him $1000 to pay for car insurance and to retrieve his car which had been impounded. He also stated that an acquaintance, Otis Bullock, gave him a roll of cash to give to Sashier. That was his explanation for the "bait money" found in his possession.
At the conclusion of the State's case, defense counsel moved to dismiss the case for lack of evidence. While counsel did not specifically mention the grading of the offense, a motion had apparently been made before trial to dismiss part of the first-degree crime for lack of evidence. The trial judge determined that there was sufficient proofs to go to the jury on that issue and denied the motion.
Gladhill testified that defendant "stated that he had a gun and that he wanted all my money." The prosecutor then sought to elicit testimony concerning ...