NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 24, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 10-10-1854 and 09-07-0617.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, on the brief).
Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Schuster, of counsel and on the brief).
Before Judges Grall and Accurso.
The grand jurors for Hudson County returned an indictment charging defendant Kevin Prentiss with four counts of first-degree robbery, N.J.S.A. 2C:15-1. Following the denial of his motion to dismiss the indictment or amend it to charge second-degree robberies and the denial of his motion to suppress a video-recording of his confession, defendant entered a conditional guilty plea preserving his right to appeal those determinations. R. 3:9-3(f). The judge sentenced defendant to concurrent ten-year terms of imprisonment subject to terms of parole ineligibility and supervision as required by the No Early Release Act, N.J.S.A. 2C:43-7.2.
In the statement defendant gave to the police following his arrest and at the time of his guilty plea, defendant admitted to committing four bank robberies in Jersey City between April 10 and July 21, 2010. Each of the robberies was captured on a video-recording made with the bank's security camera. Defendant presented each of the tellers with a threatening note demanding money, but he never spoke to any of the tellers. Three of the tellers complied with his demand and one did not. In each case, defendant walked away from the teller and left the bank without further incident. There is no evidence that defendant said anything to any of the tellers or had a weapon during the commission of any of these robberies. Indeed, the prosecutor who presented the case to the grand jury asked the jurors to "no bill" the weapons charges.
On the morning of April 10, defendant entered a Capital One Bank. The note he gave to that bank's teller read: "Give Me All Your 100's, 50's, 20's [and] 10's[.] Now Slowly And No one will get hurt now." Although defendant did not recall whether he had his hand in his pocket, his attorney stipulated that the bank's video depicts him with his hand in his pocket. In fact, the video shows defendant approaching the teller's window with one hand in his jacket pocket, but no gesturing or posturing indicative of a person concealing a weapon is discernible and neither the pocket nor hand is visible after defendant reaches the counter. Detective Michael Post of the Jersey City Police Department, who testified before the grand jury, reported that the teller said he believed defendant had a gun and that he gave defendant $2245.
Just after 9:00 a.m. on June 10, defendant entered a Bank of America in Jersey City. There, he passed a teller a note that read: "Stay calm and Quiet[.] I have a gun [and] I don't want to use it. Do what I say and no one gets hurt. Give me everything all 100's, 50's, and 20's From your top draw [sic] At one time[.] Move quick and don't be stupid. You have 20 seconds to do this. Go!" Defendant had a black plastic bag with him that he placed on the counter. The teller "locked the drawer, exited the teller window, walked to the office, [and] spoke to the manager, " who activated the silent alarm, but defendant left the bank before the police arrived.
Shortly following his failed attempt at Bank of America, defendant, still carrying his black plastic bag, went to the Capital One Bank he had robbed on April 10. This time he presented a note that read: "Stay Calm & Quiet[.] I have a weapon I don't wanna use. Give me 100's 50's and 20's[.] And no one gets hurt[.] Move Quick[.]" The teller gave defendant $2030, and he left.
On July 21, defendant went to a PNC Bank in Jersey City at about 9:23 a.m. He presented the teller with a note that said: "STAY CALM & QUIET[.] I have a weapon I don't wanna use[.] Give me all your 100's 50's and 20's[.] And no one gets hurt[.] Move quick!" The teller gave defendant $1550 plus a hidden GPS tracking device, and by 9:46 a.m. officers determined that defendant was on a bus. Defendant was arrested on the bus, and the officer found money and the GPS in a plastic bag defendant had put on the floor.
Defendant was taken to police headquarters, and he subsequently provided a videotaped statement acknowledging his commission of all four robberies.
In his statement to the police, defendant explained that he committed the crimes to get money to pay his rent and bills and buy food. He was not carrying a weapon during any of the robberies, and he never said anything to any of the tellers. The only thing he had in the black plastic bag he carried into the Bank of America was a bottle of water, which he had with him because it was hot. When he put that bag on the counter in Bank of America, he was not trying to make the teller think he had a gun in the bag, which he took with him after his failed attempt to get money from the Bank of America and later used to carry the money he was given by the teller in the Capital One Bank.
Defendant claims that the evidence provided to the grand jury and his admissions at the time of his guilty plea are insufficient to support an indictment for or his guilty plea to four counts of first-degree robbery. He does not, and on this record could not, dispute that the record supports charges and provides an adequate factual basis for four second-degree robberies.
There is no question that the evidence before the grand jury and the factual basis defendant provided at the time of his plea were adequate to support his indictment for and conviction of four second-degree robberies. Second-degree robbery is established if the defendant, in the course of committing or attempting to commit a theft, threatened another with or purposely put another in fear of immediate bodily injury. N.J.S.A. 2C:15-1a(2). Defendant acknowledged that each of the four notes he gave to a teller conveyed a threat and demanded money.
Defendant's claim is that the grand jury evidence and the factual basis defendant provided were inadequate to permit the grand jury to charge first-degree robbery or the judge to accept defendant's guilty pleas to that crime. A conviction for first-degree robbery requires proof that the defendant, in the course of committing the theft, attempted to kill another, or purposely inflicted or attempted to inflict serious bodily injury, or was armed with, used or "threatened the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. In each instance, the grand jurors ...