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State v. Smith

Superior Court of New Jersey, Appellate Division

October 22, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
FRANK J. SMITH, a/k/a JERRY STEELE, JAMES SMITH, NELSON SUAREZ, STEVEN WYCHE, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 9, 2013

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-04-0818.

Joseph K. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

Before Judges Ashrafi, St. John and Leone.

PER CURIAM

Bergen County Indictment No. 06-04-0818 charged defendant with first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (counts two and eight); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count four); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count five); fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1 (count six); fourth-degree receiving stolen property, N.J.S.A. 2C:20-7 (count seven); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (counts nine, ten, eleven, twelve, thirteen, and fourteen); and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count fifteen).

Co-defendants Bryan Wright and Cornelle Primus were also charged under the same indictment with first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count four); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count five); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (counts nine, ten, eleven, twelve, thirteen and fourteen).

Prior to trial, the motion judge granted the State's motion to sever counts one and two. Thereafter, on June 4, 2007, defense counsel moved to vacate the severance, which was denied. However, the judge precluded the State from introducing evidence related to the other, non-severed counts.

A jury trial on counts one and two[1] ensued and defendant was convicted on both counts. Subsequently, defendant pled guilty to counts six, seven and eight pursuant to a negotiated plea agreement in exchange for the State's recommendation of a five-year maximum sentence on each count, to be served concurrently with the sentences on counts one and two.

Defendant was sentenced on December 7, 2007. On count one, defendant received an extended term of life imprisonment, N.J.S.A. 2C:44-3(a), including an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.[2] Defendant was sentenced to a concurrent five-year term on count two, [3] and concurrent five-year terms on counts six, seven and eight.[4] The remaining counts in the indictment were dismissed.

I.

We briefly summarize the facts and procedural history based on the pre-trial proceedings and evidence presented at trial.

On November 21, 2005, John Calderio, Michael Pindilli and Rory Cornetto were robbed inside the Riverview Sunoco in Elmwood Park. At around 3:00 a.m., an African-American man entered the gas station wearing a ski mask, hat, winter jacket, dark bodysuit and yellow gloves. The man pointed a silver .9 mm semiautomatic handgun at the three men and ordered them to empty their pockets. They placed the station's shift money on the counter, as well as their own wallets, cell phones and keys, and then turned around as instructed by the intruder. After counting to ten, Calderio turned back around and discovered the man had fled, and then immediately called the police. Detective Vincent Scillieri of the Elmwood Park Police Department was assigned to investigate the robbery.

Pindilli's stolen wallet contained his Bank of America credit card. After the incident, Pindilli visited the bank's Elmwood Park branch to report that his card had been stolen. The bank produced a report showing that the card had been used after the robbery to make a purchase at a Pathmark. After Pindilli notified the police, Detective Scillieri went to the local Pathmark in Elmwood Park and showed an employee the information from the bank. The employee determined that the credit card purchase was made at the Pathmark in Paterson. Detective Scillieri went to that location and spoke with Gina Campuzano, the store's loss prevention security officer. Using information from the credit card receipt, Campuzano was able to pinpoint, on the store's surveillance video, the individual who made that purchase. The video footage showed two other individuals with the purchaser, one of whom was bagging the items. The receipt indicated that one of the items purchased was "a 12-pack" box of Yoo-hoo. Campuzano turned over the video footage to Detective Scillieri.

On December 3, Campuzano was working at the Paterson Pathmark when she recognized a customer as the purchaser from the surveillance video. The individual attempted to make a purchase with a credit card but Campuzano instructed the cashier to request identification. The individual responded that he did not have any, and departed without buying anything. Campuzano followed him into the parking lot and wrote down his license plate number. Campuzano then gave that information to Detective Scillieri. She identified defendant in court as the person attempting the purchase that day.

Scillieri identified defendant as the person who regularly drove the black Honda matching the license plate number provided by Campuzano. On December 9, 2005, law enforcement officers travelled to defendant's residence at an apartment complex in Paterson and observed the black Honda parked nearby. The officers then knocked on the front door of the apartment, which was answered by defendant's girlfriend, Tara Andrews. Andrews told the officers that defendant was not there. In response to the officers' request, Andrews permitted them to enter the apartment to search for defendant. She then consented to a more extensive search of the apartment, signing a consent-to-search form. The officers discovered pants and a black, hooded sweatshirt in the apartment, which were collected because they resembled the items worn by the purchaser in the Pathmark video. They found an opened and partially empty case of Yoo-hoo under defendant's bed, and keys to the Honda in defendant's bedroom. The officers also searched a locked closet across from defendant's apartment and uncovered several firearms, including a silver handgun in the pocket of a light-gray, hooded sweatshirt.

The police officers then searched the Honda. A black jumpsuit was recovered from the car, which matched the description of the assailant's bodysuit provided by the robbery victims. The officers also found a black ski mask, blue undershirt, ...


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