NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 07-12-1019, 07-12-1018, 07-12-1017.
Joseph E. Krakora, Public Defender, attorney for appellant Jaquan Julius Lee (A-2842-10) (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (A-2842-10) (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Tony Lee Canty (A-3813-10) (Michele Adubato, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent State of New Jersey (A-3813-10) (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).
Before Judges Messano, Ostrer and Kennedy.
Defendants Jaquan Julius Lee and Tony Lee Canty appeal from their convictions, after a 2010 jury trial, of eight counts of first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a(1); two counts of third-degree unlawful possession of a shotgun without a firearms purchaser identification card, N.J.S.A. 2C:39-5c(1) and N.J.S.A. 2C:58-3; two counts of third-degree unlawful possession of a loaded shotgun, N.J.S.A. 2C:39-5c(2); and two counts of third-degree unlawful possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b.They were also convicted of being certain persons not to possess firearms, N.J.S.A. 2C:39-7, a second-degree offense. The convictions arose out of three robberies in the early morning hours of July 30, 2007 in Elizabeth, each robbery involving multiple victims.
The court sentenced defendants to fifteen-year terms for each robbery count. The sentences were concurrent as they related to multiple victims in the same incident, but consecutive as they related to each of the three incidents. Consequently, defendants were sentenced to aggregate terms of forty-five years. Pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, they were required to serve eighty-five percent of their sentence before parole eligibility. Concurrent terms were imposed for the remaining counts that were not merged into the robbery counts.
Defendants both argue the court should have excluded in-court identifications, and their sentences were excessive. Canty separately challenges the court's denial of a motion to suppress a search of a vehicle in which weapons and robbery proceeds were found; the admission of alleged other crimes evidence; and allegedly prejudicial comments by the assistant prosecutor. Lee separately challenges the adequacy of the jury charge.
We affirm defendants' convictions. However, we agree that the court did not adequately explain its reasoning for imposing three consecutive terms. We therefore remand for resentencing.
We begin with an overview of the facts. The first of the three robberies occurred shortly after midnight, July 30, 2007. The victims were two boys, sixteen-year-old Nikolai Alfred and fourteen-year-old German Larrahando. They were walking in Elizabeth when a white sedan stopped in the street and a passenger leaned out of the door. The car drove away and within minutes, three African-American men armed with at least one shotgun approached the boys and robbed them of their cell phones, an ipod, and some cash.
The second robbery occurred minutes later. Three friends, Jennifer Silva-Ferreira, Clive Marion and Wilmar Patino, were out to celebrate Silva-Ferreira's twentieth birthday. They were outside a liquor store. Three men approached them. The victims were threatened with shotguns. The men took a purse, car keys, a wallet and a passport.
The third robbery occurred shortly thereafter. Several teenagers had congregated outside on the sidewalk. They saw a white sedan drive around the block three or four times, then stop. The teens noticed an African-American female driver. Two or three African-American men emerged with shotguns. Phones, wallets, cash, and IDs were taken from Alexander Vigier, Quasim Allen, and Hollis Dryer. Also present were three women, Mara Davis, Ebony Jones, and Vigier's sister, Angelina.
Witnesses from each incident described the robbers. Among the robbers was a short, stocky man with dreadlocks who wore a tied blue bandanna to mask his mouth and nose, and a hoodie. During the third robbery, the man, who wielded a shotgun, pulled his bandanna down to kiss Jones on the cheek. The other two men were taller and slimmer. They were described as wearing t-shirts. One wore a blue Detroit Lions hat.
After the third robbery, Jones called the police and reported the license plate of the robbers' vehicle. Within minutes of each robbery, police had broadcast descriptions of the participants and their vehicle. Two Elizabeth police officers on patrol, Guillermo Valladares and Jose Torres, observed a white Toyota bearing the reported license plate number at the corner of Third and Bond Streets. There were three African-American men and an African-American woman standing in a group next to the car. The officers exited their car and ordered them to stop. One officer arrested Canty, and another arrested Lee as he was "high stepping it." The third man and the woman fled.
When he was arrested, Lee, five-foot-eight, was wearing a Detroit Lions hat and a white v-neck t-shirt. Canty, five-foot-two, was wearing a knotted blue bandanna, with the knot in the back of his neck, and the cloth in the front, where it could be pulled up to cover his face.
A search of the vehicle and defendants resulted in the seizure of two sawed-off shotguns and proceeds from the robberies, including Dryer's wallet. Three red bags of green vegetation were found in the car, which matched a red bag of vegetation found in Canty's pocket upon arrest. Also found in the car was a pocketbook containing the social security card of Sade Ingram, and a necklace engraved with her and Lee's names. A Detroit Lions jacket was also seized.
Ingram was the woman who drove the white Toyota during the robberies. She testified against Canty and Lee. Also testifying for the State was Tamara Vilsaint, who owned the Toyota and testified that she lent it to Lee. Both women were romantically involved with Lee at one point. After Lee was incarcerated, he wrote letters to Vilsaint and Ingram that, the State argued, demonstrated consciousness of guilt.
Each of the women had initially given statements to police denying involvement in the robberies. Vilsaint initially said her car was stolen and denied that she knew Lee. When Ingram retrieved her bag from Vilsaint's impounded car, she told police she left it there after a shopping trip with Vilsaint. Both were ultimately charged with offenses related to the incidents or their false statements. However, both were admitted to pre-trial intervention (PTI) conditioned on guilty pleas to relatively minor charges.
Neither defendant testified. They generally challenged the reliability of eye-witness identifications, and the credibility of Lee's two female friends, Ingram and Vilsaint. Lee questioned whether the three robberies were committed by the same persons, because they occurred so closely in time, according to victims' reports. Canty emphasized the absence of a prior connection between himself and Ingram and Vilsaint.
Both defendants challenge the robbery victims' in-court identifications. Canty argues in Point II:
THE IN COURT IDENTIFICAITON TESTIMONY PRESENTED AT TRIAL SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.
Lee argues in his Point I:
IMPERMISSIBLY SUGGESTIVE SHOW-UPS TAINTED THE IN-COURT IDENTIFICATIONS OF WITNESSES, HENCE, THE IN-COURT IDENTIFICATIONS SHOULD HAVE BEEN EXCLUDED AS UNRELIABLE.
Both defendants also challenge their sentences as excessive. Lee argues in Point V:
THE DEFENDANT'S SENTENCE OF 45 YEARS, 85% TO BE SERVED BEFORE PAROLE UNDER NERA, WAS MANIFESTLY EXCESSIVE.
Canty argues in his Point V:
THE AGGREGATE SENTENCE IMPOSED UPON MR. CANTY OF 45 YEARS WITH 38 YEARS, 3 MONTHS AND ONE DAY OF PAROLE INEGLIBILITY WAS EXCESSIVE AND MUST BE MODIFIED AND REDUCED. (Not raise[d] below)
Lee separately raises the following additional points:
THE COURT FAILED TO CAUTION THE JURY THAT SADE INGRAM'S ADMISSION OF GUILT COULD NOT BE USED AS EVIDENCE OF THE DEFENDANT'S GUILT TO THOSE SAME CHARGES. (Not Raised Below).
IT WAS IMPROPER FOR THE COURT TO REFER TO SADE INGRAM'S TESTIMONY AS AN IDENTIFICATION BECAUSE SHE WAS AN ACCOMPLICE WHO KNEW THE DEFENDANT. (Not Raised Below).
THE ACCOMPLICE-LIABILITY CHARGE WAS NOT TAILORED TO THE FACTS OF THE CASE, AND FAILED TO EXPLAIN HOW THE ACCOMPLICE THEORY APPLIED TO THE LESSER-INCLUDED OFFENSES. (Not Raised Below).
Canty separately raises the following additional points:
THE WARRANTLESS SEIZURE OF THE SHOTGUNS FOUND IN THE WHITE TOYOTA VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM UNLAWFUL SEARCHES AND SEIZURES GUARANTEED BY THE ...