NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 16, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-02-0315.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
Before Judges Ostrer and Hayden.
This case involves the strong-arm robbery of a McDonald's employee near Newark Penn Station in the middle of a summer afternoon. Defendant Faheem Cook appeals from his conviction, after a jury trial, of second-degree robbery, N.J.S.A. 2C:15-1, and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, as charged in a February 2010 Essex County indictment. After merging the conspiracy count into the robbery count, Judge Michael L. Ravin imposed a sentence of seven years, with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
Cook and his cousin James Bush were both charged in the two-count indictment. Bush pleaded guilty to the robbery in return for the State's recommendation of a four-year NERA term. While awaiting sentencing, he testified against Cook. The State also called the victim of the robbery, Josue Salazar, and the investigating Newark Police Department Detective, Taibu Thomas. Cook was the sole defense witness.
Bush testified that on August 28, 2009, he told Cook he needed money after his wife threw him out of his home for failing to support his family. Bush was unemployed. Bush asserted that Cook proposed a robbery. Bush claimed he initially resisted the idea, but, when Cook suggested they go downtown, Bush accompanied Cook to Penn Station. Bush said he believed they were going to rob someone. Bush and Cook were captured in a surveillance photo near the station at 2:02 p.m. The two walked around, "lookin' for somebody to — get" or rob. Bush asserted that as Cook identified potential targets, he ridiculed and belittled Bush over his reluctance to commit the robbery.
Bush asserted that Cook ultimately selected Salazar as the target. Bush said they saw Salazar at the McDonald's restaurant in the station. Bush was depicted in a photo, time-stamped at 2:00 p.m., in front of the McDonalds. Bush and Cook followed Salazar when he walked to the Gateway Center to withdraw money from an ATM. They followed him back to the McDonalds, waited while he ate a meal, and then followed him once he left the restaurant and station. They trailed him as he walked down Ferry Street.
Bush said that Cook dictated how the robbery would be committed. "Faheem was basically telling me, this is what you gonna do; you gonna walk up behind 'em. You gonna walk up on the side of 'em, put your arm around 'em and I'll do the rest." Bush complied, placing his left arm around Salazar's shoulder.
I said, let me use your phone; and he responded: What? And I said, where's the money? And Faheem cut me off and he said, I'm not gonna be as nice as my cousin. Give me your phone – give me your [iP]od. And the guy replied: You can't have my phone but you could have my money.
While Cook spoke to Salazar, he threatened him with a balled up fist. Bush testified that Cook grabbed ...