On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-06-0809.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2012
Before Judges Messano and Ostrer.
Defendant, Forrest M. Baker, Sr., appeals from the denial of his petition for post-conviction relief (PCR). Following a jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1(a), and using a juvenile, his son, M.B., to commit a crime in the first-degree, N.J.S.A. 2C:24-9(a).*fn1
We recite some of the salient evidence adduced at trial:
At approximately 4:00 p.m. on June 29, 2002, . . . the assistant manager of the Rite Aid store in Mount Laurel was near the cash register when she was approached by a teenage boy who removed a gun from under a newspaper and announced a robbery. [She] told him to take what he wanted from the register as she moved to the back of the store to tell the other employees what was occurring. The young man took approximately $200 from the register and left. [She] called the police.
The robbery went unsolved for several months until M.B., in the company of his aunt and uncle, came to the Mount Laurel police station. M.B. . . . provided a detailed statement implicating himself and defendant in the robbery. M.B. claimed that defendant gave him the gun and threatened him with death unless he committed the robbery. He also implicated defendant in other unsolved bank robberies in the area.
A federal arrest warrant was issued for defendant, and a search warrant was also issued for his residence, his mother's residence, and his car. The search of the vehicle resulted in the seizure of a fake mustache, a bank card in defendant's name, and a .45 caliber pellet gun that was described at trial as "very realistic."
Agents of the Federal Bureau of Investigation (FBI) arrested defendant and questioned him at their Cherry Hill offices . . . . [H]e admitted that on June 28, 2002, while his son was in the car, he robbed the Equity Bank in Cherry Hill. He further claimed that he returned to the car with a pillowcase full of money and gave it to M.B. to hold. However, a dye pack in the money exploded, and defendant told M.B. to throw the pillowcase and the proceeds of the robbery out of the vehicle, which he did.
Members of the Mount Laurel police department also questioned defendant about the robbery of the Rite Aid. Although he initially told the police he did not tell his son to rob the store, defendant later acknowledged that "he may have dared him to do it, but he d[id] not recall telling him, or . . . threatening him to go commit the robbery." Defendant also acknowledged knowing that M.B. had in fact committed the Rite Aid robbery.
At trial, M.B. testified that defendant told him as they drove to the Rite Aid that they "didn't have any money and [they] needed money." Defendant told M.B. that he should "go in and rob the Rite Aid," and told him where he would be waiting with the car. M.B. claimed defendant gave him the gun and the newspaper, that he felt threatened by defendant, was afraid of him, and believed he had to commit the robbery. After leaving the Rite Aid, M.B. testified that he returned to the waiting car and gave defendant the money.
Defendant did not testify at trial, however, his mother was called as a defense witness. She testified that defendant's three children lived with her sporadically, described M.B.'s troubled relationship with his father and noted that on occasion M.B., who had impulse control problems, had taken his father's car without permission. Defendant's fifteen year-old daughter, B.B., and his fourteen year-old son, E.B., were also called as defense witnesses, though neither provided any relevant or exculpatory information. Both denied telling defendant's investigator that M.B. had admitted committing the Rite Aid robbery by himself. The defense rested after calling investigator Annie Prochorencko, who testified that she interviewed B.B. and the girl told her that M.B. 1) "had done [the robbery] himself"; 2) had taken defendant's car "while [he] was sleeping"; and 3) had "blamed defendant because he was afraid of the consequences to himself." [State v. Baker, 400 N.J. Super. 28, 33-35 (App. Div. 2008), aff'd o.b., 198 N.J. 189 (2009) (footnote omitted).]
The judge granted the State's motion to impose an extended term of imprisonment pursuant to the "Three Strikes Act," N.J.S.A. 2C:43-7.1, and sentenced defendant to a life term without parole, consecutive to a federal sentence defendant was already serving. We ...