NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 10-06-0352.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).
Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).
Before Judges Messano and Hayden.
Following a jury trial, defendant Michael E. Haymes was convicted of first-degree robbery, N.J.S.A. 2C:15-1. Defendant raises the following points for our consideration on appeal:
THE CONVICTION MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT COMMITTED THEFT, AN ESSENTIAL ELEMENT OF THE CHARGE[D] OFFENSE OF ROBBER[Y].
THE CONVICTION MUST BE REVERSED BECAUSE THE JURY WAS NOT REQUIRED TO RENDER A UNANIMOUS VERDICT WITH RESPECT TO EACH OF THE ALLEGED VICTIMS NAMED IN THE INDICTMENT. (Not Raised Below).
THE SENTENCE OF TEN YEARS, EIGHT AND A HALF YEARS WITHOUT PAROLE, IS EXCESSIVE FOR THIS DEFENDANT AND THIS OFFENSE.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The testimony adduced at trial demonstrated that defendant entered a Rite Aid pharmacy in Lower Township and informed the cashier, Joy Ufer, that he had a gun, was robbing the store and wanted $20. Defendant's right hand was in his sweatshirt pocket, and Ufer thought she saw the outline of a gun, despite the fact that the customer directly behind defendant told Ufer that the defendant did not have a gun. Ufer told approximately ten other customers in line behind defendant to proceed to the other cash register at the back of the store.
Ufer told defendant that she needed to get the manager to open the register to comply with his request, and she used the intercom to call manager Jeffrey Irwin. When Irwin did not respond, Ufer asked defendant's permission to go find him. When she located Irwin, Ufer told him that a man wanted to rob the store. Irwin walked to the front of the store, and Ufer proceeded to the photo lab. From the photo lab, Ufer watched Irwin activate the silent alarm. A third employee who was in the photo lab dialed 9-1-1 and handed the phone to Ufer, who provided the police dispatcher with a description of defendant.
Irwin approached defendant at the front of the store. Defendant's hand was still in his pocket and, like Ufer, Irwin believed it contained a gun. Irwin asked defendant if he was sure that he wanted to rob the store, and defendant instructed Irwin to give him the money. Irwin complied, and defendant took his hand out of his pocket to grab the money.
Defendant exited the store through the front door and stood at a nearby concrete pillar until police arrived. Corporal T. Shaun Whittington, who recognized defendant, approached and asked him what happened. Defendant told Whittington that he had just robbed the store. Whittington handcuffed defendant and placed him under arrest. There was a "mini Bic" lighter in the right-hand pocket of defendant's sweatshirt and a twenty-dollar bill in his pants pocket.
Based on this evidence, the jury convicted defendant of first-degree robbery, answering in the affirmative a specific interrogatory that defendant "was armed with or used or threatened the immediate use of a deadly weapon" at the time of the commission of the robbery. The judge subsequently imposed the minimum sentence for a first-degree crime, ten years imprisonment, along with an eighty-five percent ...