On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-08-1865.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2011
Before Judges A. A. Rodriguez, Sabatino and Fasciale.
Defendant appeals from his convictions for first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; five counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree burglary, N.J.S.A. 2C:18-2; five counts of third-degree criminal restraint, N.J.S.A. 2C:13-2; five counts of fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4); three counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; three counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. We affirm but remand to amend the judgment of conviction (JOC) to allow for merger of the conspiracy conviction into the robbery convictions.
A grand jury indicted defendant and co-defendants Gary Sayers and Steven McGuire for certain offenses that they committed on June 22, 2006.*fn1 A jury tried defendant and Sayers together over nine days in September 2006, and found them guilty of all the charges.*fn2
In our unpublished opinion, State v. Sayers, No. A-2074-08 (App. Div. Aug. 24, 2010),*fn3 we affirmed Sayers's convictions and summarized the facts as follows:
At 11:00 p.m. on June 22, 2006, the T.G.I. Friday's restaurant in Somers Point closed. About twenty minutes later, only five employees remained: Eric Yaeger, William McCamy, Eugenia Juarez, Brian Katinas, and Shawn Brown. Katinas dragged several garbage cans from the kitchen out to the dumpster, leaving one to prop open the back door. He was confronted by a masked man pointing a gun at him. A second masked, armed man stood nearby. The first gunman ordered Katinas to tell him how many people were left in the building and where they were located. Katinas did so. The masked men brought Katinas inside at gunpoint to the dry goods storage area. Along the way he encountered Juarez and Brown. They were also escorted to the storage area. By the time they reached the storage area, a third masked gunman joined them. McCamy noticed the gunmen approaching and alerted Yaeger, who was busy tending to the cash drawer. The first gunman then followed McCamy back toward the storage area at gunpoint, while the second gunman emptied the cash drawer and demanded that Yaeger bring him to the safe in the office. The first gunman told the third gunman to shoot McCamy, but after an interruption from Brown, decided instead to rob McCamy, along with Juarez and Katinas, taking cell phones and money from their pockets. He then produced a roll of duct tape and ordered McCamy to bind everyone else's hands.
Meanwhile, the second gunman followed Yaeger to the office. Once there, Yaeger emptied the safe and handed over the contents. The gunman then ordered him to empty the bottom part of the safe, where money already prepared for deposit is dropped. Initially, when Yaeger told him that he could not access that part of the safe, the gunman "jabbed [him] in the back of the head with the pistol and told [him] to open the [f***ing] safe." Soon, though, he accepted Yaeger's explanation that the only key was held by an armored guard that picked up the contents twice weekly, and directed Yaeger back to the storage area.
The gunmen promptly herded everyone into the beer cooler and told them to stay put. Unknown to the gunmen, the cooler had a faulty lock. The employees waited a short time to ensure the robbers had left before escaping and calling the police.
[Sayers, supra, slip op. at 2-4.]
McGuire admitted that he participated in the robbery with defendant and Sayers, explained that they used Sayers's car, in which the police located masks, gloves, and guns, and turned himself in to the police. Thereafter, the police arrested defendant and Sayers.
Defendant did not testify but presented several witnesses, including his girlfriend, Valerie Baldino, who testified that at 6 p.m. on June 21, 2006, she and defendant left for a vacation in New Hampshire with Sayers. Baldino was sure that defendant was not at the restaurant on June 21, 2006. Baldino testified that she and defendant returned from New Hampshire on June 26, 2006.
After the trial, the judge granted the state's motion to treat defendant as a persistent offender, N.J.S.A. 2C:44-3a, and sentenced defendant to an aggregate seventy-year prison term subject to fifty-six years without parole, pursuant to NERA.*fn4 This appeal followed.
On appeal, defendant raises the following points:
THE TRIAL JUDGE ERRED IN ADMITTING TESTIMONY IN VIOLATION OF N.J.R.E. 404(b) AND IN ALLOWING THE PROSECUTOR TO INTRODUCE EXTRINSIC EVIDENCE OF OTHER BAD ACTS. (NOT RAISED BELOW).
THE PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY IN HIS SUMMATION REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S CONDUCT IN NOT MERELY OBJECTING TO A PORTION OF ONE DEFENSE SUMMATION, BUT BY IMPROPERLY PROVIDING INFORMATION TO THE JURY WHICH WAS NOT PART OF THE TRIAL RECORD AS PART OF HIS OBJECTION. (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT SEVEN CHARGING SECOND-DEGREE BURGLARY BASED UPON THE EXISTENCE OF A DEADLY WEAPON INTO COUNT TWO CHARGING FIRST-DEGREE ROBBERY BASED UPON THE ...