NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 17, 2012
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-09-1501.
Lon Taylor, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Taylor, on the brief).
Erin M. Campbell, Special Deputy Attorney General/Acting Assistant Prosecutor for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Campbell, on the brief).
Before Judges Fuentes, Ashrafi and Hayden.
Following a jury trial, defendant Malik Flowers was convicted of first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a firearm for unlawful purposes, N.J.S.A. 2C:39-4(a); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(a); and second-degree certain persons possessing a firearm, N.J.S.A. 2C:39-7(b). Following appropriate mergers, the judge sentenced defendant to an extended term of thirty-five years for the robbery charge with an eighty-five percent parole ineligibility and a mandatory five-year period of parole supervision commencing at the time defendant is released from prison, both pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; a concurrent term of five years for the unlawful possession of a weapon charge; and a consecutive ten-year term with five years parole ineligibility for the certain persons possessing firearm charge. Defendant appeals and we affirm.
These are the facts adduced at trial. On April 17, 2007, a man later identified as defendant entered a deli in Jersey City at about 10 p.m. Armed with a handgun, he pulled the storefront gate halfway down and put a mask on. Then a second man, unmasked and later identified as co-defendant Aleem Mallard, entered and pulled the gate completely shut. Defendant brandished the gun at the three deli employees and demanded money. He struck an employee named Pedro on the head with his gun and took Pedro's money and cell phone. After taking employee Tareek Ali's wallet, chain, and money, the gunman removed about $1200 from the cash register. Then the two men exited through the front door of the store. The incident lasted approximately fifteen minutes.
After the intruders left, Ali called the police, who responded to the scene. Approximately thirty minutes later, the police brought to the store two suspects found driving a car similar to the robbers' vehicle. Ali stated that they were not the men responsible for the crime. The police officers then took Ali to the police station, where an officer soon told him that the police found two more suspects he could observe.
Around the same time as the robbery, Francisco Fernandez was looking out his third floor apartment window approximately thirty to fifty feet from the deli. He noticed two "suspicious" men near a green Dodge. Both were African-American, around six feet three inches tall, weighing around 220 to 240 pounds. Fernandez noted that the man closer to his window was crouching down and signaling to the other man down the block, pointing in the direction of the store. The man nearer to the store appeared to be in his late twenties or early thirties, wearing a red shirt. The other man, who appeared older, wore a black shirt and dark jeans.
After observing for a few minutes, Fernandez witnessed the two men get into the Dodge and drive away. He noted the license plate number when the car's lights were turned on and called the police. Shortly thereafter, he saw the police arrive at the deli and learned of the robbery. Fernandez never saw defendant or Mallard enter or exit the deli. In court he identified defendant as the older man and Mallard as the man closer to the deli.
Based upon the license plate number provided by Fernandez, Detective Joseph Walsh drove Fernandez to an address on Fulton Street. On route, they saw the Dodge with the same license plate drive past them, and Walsh pursued the vehicle. During the chase the Dodge crashed into a metal pole and the driver and passenger exited the car. Fernandez identified them to the police as the suspicious men he viewed from his apartment.
The police immediately arrested both defendant and Mallard. The police recovered a loaded handgun from the trunk, $511 from Mallard's clothing, $831 from defendant's pants pocket, and five of Ali's credit cards from defendant's boots.
When the police took Ali to the crash site, they brought defendant to him in handcuffs, shined a light in defendant's face, and asked if he was one of the robbers. Ali identified him as the man who had the gun and identified the ...