NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-09-2058.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Lauren S. Kirk, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Harris and Guadagno.
After a jury trial, defendant Ayanna Dunia was convicted of (1) second-degree conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, and (2) second-degree robbery, N.J.S.A. 2C:15-1 (as a lesser-included offense of first-degree robbery). She appeals from the February 28, 2012 judgment of conviction, and urges that her five-year prison sentence, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, was manifestly excessive. We affirm.
On July 30, 2010, Dunia, along with co-defendant Micha K. Cadogen, Ashley Weston, and Janayah Harper, traveled to Atlantic City from Philadelphia. Around 1:00 a.m., the group began to frequent several of the city's clubs and casinos.
At approximately 3:30 a.m., the foursome decided to hail a cab driven by Loi Tang. Tang testified that four people flagged him down at the intersection of Pacific and South Carolina Avenues in front of the Courtyard Marriott, and asked him to drive them to the Borgata casino. Dunia testified that the group initially wanted to go to the Borgata "as a spur of the moment thing" but before going there they planned to pick up Harper's friend, who was going to "pay for our cab ride" and take them "drinking and stuff." According to Dunia, the group decided to take a cab because everyone was intoxicated, and "we didn't know where we were."
Cadogen testified that Dunia was in the front passenger seat. Cadogen, with Weston and Harper to his left, was positioned immediately behind Dunia in the back seat of the cab. Tang testified that before reaching the Borgata, the passengers asked to be dropped off in a parking lot along Maryland Avenue. At that time, Dunia asked for change from a one-hundred dollar bill she was holding. Tang refused to give her change until he had a chance to closely examine the currency. The transaction never occurred because the group got back into the cab and asked Tang to take them to the Showboat casino.
Upon arriving at the Showboat, Dunia directed Tang to return the group back to where he initially picked them up. While stopped at a red light along the route, Dunia demanded Tang's money. According to Tang,
the female, the one that sit in front, demand the money, she tell give me the money and she pull —— I don't know what, I only know that she demand the money and pull something you know like give me the money . . . she pulled something out, I couldn't see what, but you know it hard, I don't know.
While this was happening, the others exited the cab.
Cadogen testified that he observed Dunia through the front passenger window of the cab holding a pocketknife in her hand pointed in Tang's direction. Furthermore, Cadogen stated that Dunia attempted to pay the fare with "fake money, " but was unable to fully distinguish what Dunia was attempting to tender as payment.
Dunia then told Cadogen to "get [Tang's] money." According to Tang, Cadogen stated, "you better give her the money now." Cadogen testified that, after racing around the cab, he reached into Tang's pocket through the open driver's window and took Tang's money. Tang testified that he felt a "hard object" against his jacket but because he was "so scared at that time, " he did not know what touched him nor did he see the object that Dunia was holding. After Cadogen took the money, Dunia exited the cab and all four passengers fled from the scene on Virginia Avenue running towards Atlantic Avenue. Tang immediately called 9-1-1.
On cross-examination, Cadogen admitted that, in his plea allocution, he "demanded the money" from Tang. Moreover, Cadogen stated that his demand for Tang's money was done after Dunia told him to take Tang's money. Cadogen testified that he took less than twenty-five dollars from Tang.
After all four passengers fled, Tang traversed the area in his cab looking for the group. According to Cadogen, when Tang was out of sight, the group split up —— Cadogen and Dunia went one way, and the two other passengers went in a different direction. Tang testified that he
saw the people who robbed me, the male, female, they both run in front of the bar, they inside the bar, I saw them go inside the bar, and then I know that I go ...