NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5301-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDREW E. JOHNSON, JR.,
Defendant-Appellant. __________________________
Submitted December 6, 2018 – Decided August 9, 2019
Before Judges O'Connor and DeAlmeida.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-04-1422.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Sara M. Quigley, Deputy Attorney General, of counsel and on the briefs).
Appellant filed a pro se supplemental brief. PER CURIAM
A jury convicted defendant Andrew E. Johnson, Jr. of two counts of first-
degree armed robbery, N.J.S.A. 2C:15-1; three counts of second-degree
conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; one count of
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); three counts of
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); three
counts of second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a); one count of third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(2); three counts of third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d); one count of third-degree attempted
theft, N.J.S.A. 2C:20-2(b)(2)(d); five counts of fourth-degree aggravated assault
(pointing a firearm), N.J.S.A. 2C:12-1(b)(4); three counts of fourth-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and one count of fourth-
degree criminal mischief, N.J.S.A. 2C:17-3(a)(1).
After merging certain convictions, defendant was sentenced to an
aggregate term of forty-one years in prison. Defendant appeals from his
convictions and sentence. In counsel's brief, defendant raises the following
points for our consideration:
POINT I: DEFENDANT'S PRETRIAL MOTION FOR SEVERANCE OF THE ROBBERY COUNTS
A-5301-15T4 2 SHOULD HAVE BEEN GRANTED BY THE COURT.
POINT II: THE OUT-OF-COURT POLICE IDENTIFICATIONS MADE UNDER IMPERMISSIBLY SUGGESTIVE CIRCUMSTANCES SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.
POINT III: COMMENTS MADE BY THE PROSECUTOR DURING THE SUMMATION CONCERNING FACTS NOT IN EVIDENCE WERE GROSSLY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT IV: THE ADMISSION OF CERTAIN INFLAMMATORY EVIDENCE DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT V: IT WAS ERROR FOR THE SENTENCING COURT TO FAIL TO MERGE CONSPIRACY AND AGGRAVATED ASSAULT WITH THE ROBBERY OFFENSES.
POINT VI: THE AGGREGATE SENTENCE OF THIRTY-SEVEN YEARS WITH EIGHTY-FIVE PERCENT PAROLE INELIGIB[I]LITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED.
After the State filed its brief, defendant filed a supplemental letter brief
through counsel. The supplemental brief noted the State issued a subpoena to
obtain his cell phone records, which the State then used at trial to show he was
one of the perpetrators involved in the subject crimes. Counsel argues the State
A-5301-15T4 3 should have obtained such records by securing a search warrant, and that its
failure to do so warrants a reversal of his convictions. This issue was not raised
before the trial court.
In his supplemental pro se brief, defendant advances the following three
arguments, although his second and third points were raised in counsel's initial
brief:
POINT I: TRIAL COURT'S REPEATED USE OF THE AMBIGUOUS PHRASE "AND/OR" IN THE JURY INSTRUCTION ON POSSESSION OF A DEADLY WEAPON WAS PLAIN ERROR. (Not raised below).
POINT II: THE TRIAL COURT ERRED IN THE DENIAL TO NOT [sic] SEVER THE INDICTMENT.
POINT III: THE IDENTIF[I]CATION OF JARELL MARSON AND RICARDO RIVERA SHOULD HAVE BEEN SUPPRESSED DUE TO THE FACT THEY WERE THE PRODUCT OF COERCION AND NOT INDEPENDENTLY MADE BUT IMPOSED ON THEM BY THE POLICE.
Having reviewed the briefs, the record, and applicable legal principles, we
affirm the convictions. For the most part, we affirm defendant's sentence;
however, we determine certain counts must merge with others and the sentences
imposed on them must be vacated. We remand this matter for correction of the
judgment of conviction.
A-5301-15T4 4 I
We summarize the pertinent evidence relevant to the claims raised on appeal.
Co-defendant Ricardo Rivera, Jr., testified that he, defendant, and co-defendant
Jarell A. Marson were friends and, on August 2, 2012, carried out a plan to rob a 7-
Eleven in Cherry Hill for the purpose of stealing money. Consistent with that plan,
Rivera waited in his car as the getaway driver, while defendant and Marson entered
the 7-Eleven to execute the robbery. When defendant and Marson returned to the
car, they told Rivera they stole $300 from the cash register. Rivera was given sixty
dollars and the other two split the remaining proceeds taken from the register.
Marson also testified that he and defendant entered the 7-Eleven between
11:00 p.m. and midnight. When they entered the store, he was carrying a metal pipe
and defendant a gun, and their faces were covered. While defendant pointed the gun
at a clerk and Marson held up the pipe "like a bat," defendant demanded the clerk
tell them where the safe was located. When the clerk did not respond, defendant hit
the clerk's head with the gun and Marson struck him on the head with the pipe.
The clerk fell to the floor and began bleeding from the back of his head.
Notwithstanding his condition, defendant grabbed the clerk by his arm, dragged him
to the back of the store where an office was located, and demanded the clerk reveal
the location of the safe. The clerk managed to get up, go to, and open the cash
A-5301-15T4 5 registers. Marson grabbed money from the registers, and he and defendant ran from
the store and got into Rivera's car. The clerk's testimony of what occurred in the 7-
Eleven was consistent with Marson's, although the clerk added that because they
were masked, he could not identify his assailants. The clerk further noted he called
the police after Marson and defendant ran from the store.
Rivera testified that after defendant and Marson robbed the 7-Eleven, the three
discussed robbing a Wendy's in the same municipality. They decided to carry out
their plan at 2:00 a.m., when the restaurant was closing. Like the first robbery, they
agreed Rivera would wait in his car nearby as the other two entered and robbed the
Wendy's. Marson testified that when he and defendant got to the restaurant, Marson
was carrying the same pipe and defendant the same gun they had when they entered
the 7-Eleven earlier. Both were dressed in dark clothing and their faces were
covered.
Marson further testified that when he and defendant crossed the parking lot
toward one of the doors at Wendy's, defendant pointed the gun at and Marson held
the pipe in a "swinging manner" near an employee who was outside of the building,
and "pretty much, like, forced him back into the building." Other employees coming
out of the door were forced back inside, as well, as defendant pointed the gun at
A-5301-15T4 6 them. Marson told who he believed was the manager of Wendy's to turn off the
alarm. Meanwhile, defendant brandished the gun at the other employees.
Marson testified he and defendant went to an office in the restaurant and told
the manager to open the door, but the manager did not have the key. Marson hit his
pipe against and defendant shot through a window in the door, causing the window
to break and enabling the manager to reach through the window to open the door
from the inside. While pointing a gun at them, defendant made the employees and
manager go into the office. Then, while specifically pointing the gun at the manager,
defendant told him to open the safe. The manager complied and pulled money out
of the safe. Defendant and Marson took approximately $500 of the money removed
from the safe, fled the restaurant, and got into Rivera's car, which was parked at a
predetermined location. Rivera was given a portion of the robbery proceeds, and
Marson and defendant split the rest.
Testimony provided by Wendy's manager was essentially consistent with
Marson's; the manager added he contacted the police as soon as Marson and
defendant fled. However, because defendant and Marson's faces were covered, the
victims of the robbery could not identify them.
Marson testified that on August 5, 2012, he, defendant, and Rivera discussed
robbing another entity. Rivera again agreed to be the driver of the getaway car.
A-5301-15T4 7 While the three were riding in Rivera's car, they spontaneously decided to rob
another 7-Eleven in Cherry Hill, which was different from the one they had robbed
three days before. Rivera dropped Marson and defendant off and the two approached
the store.
Marson noted that, like the first two robberies, he and defendant wore dark
clothing and their faces were covered. Marson carried the same metal pipe and
defendant the same gun. As defendant reached for the door handle, Marson saw a
clerk inside of the store and noticed his "arm reach down" to press what Marson
surmised was an alarm. Marson then heard an alarm go off. Meanwhile, defendant
had tried to but was unable to open the door because it was locked. Marson and
defendant ran to where Rivera was waiting and the three drove off.
Police officer Joseph Hurley testified he was in his patrol car when he
observed Rivera's car stopped in the middle of a road, although the car proceeded
forward when Hurley's patrol car got behind Rivera's. Then, at one point, Rivera
took off at a high rate of speed. The officer activated his overhead lights and siren,
but Rivera did not stop and a chase ensued.
Eventually, Rivera slowed down and defendant jumped out of the car. Rivera
then brought his car to a stop. By then, the back-up assistance Hurley had called for
A-5301-15T4 8 arrived. When the police approached the car, they observed a gun on the floor in
front of the passenger's seat and arrested Rivera and Marson.
In addition to other evidence, a search of the car revealed a metal pipe, as well
as a cell phone that belonged to defendant. Marson and Rivera ultimately gave
statements confessing their and implicating defendant's involvement in the two
robberies and the attempted robbery. Marson and Rivera subsequently pled guilty
to various charges and, as part of their plea agreement, consented to testify against
defendant.
II
A
As noted, among other charges, defendant was convicted of committing one
count of first-degree robbery at 7-Eleven on August 2, 2012, and one count of first-
degree robbery at Wendy's the following day. Although charged with first-degree
robbery in connection with the incident at 7-Eleven on August 5, 2012, he was found
not guilty of that offense; however, he was found guilty of third-degree attempted
theft. Before trial, defendant unsuccessfully moved to sever the three counts of
robbery.
On appeal, defendant contends the court erred when it denied his motion.
Defendant maintains the offenses arising out of each incident should have been tried
A-5301-15T4 9 separately, so that the jury would not conclude he had a propensity to engage in
criminal conduct. He claims that at the time the motion was argued, it was known
the co-defendants were willing to provide testimony of defendant's participation in
all three incidents. Therefore, in order to prove defendant guilty of any one of the
robberies, it was unnecessary to introduce evidence of the other two. The State
argues the trial court did not err when it denied the severance motion, thus permitting
evidence of all three robberies at trial, because such evidence established motive,
common scheme, plan, and defendant's identity, given the jury might have rejected
the co-defendants' testimony on credibility grounds.
Whether a severance motion should be granted is within the trial court's
discretion, and we defer to that decision, absent an abuse of that court's discretion.
State v. Chenique-Puey, 145 N.J. 334, 341 (1996). Generally, offenses "of the same
or similar character" or "based on the same act or transaction or on 2 or more acts or
transactions connected together or constituting parts of a common scheme or plan"
may be joined together in the same indictment. R. 3:7-6. However, if it "appears
that a defendant . . . is prejudiced by a permissible or mandatory joinder of offenses
. . . in an indictment or accusation the court may order an election or separate trials
of counts . . . or direct other appropriate relief." R. 3:15-2(b).
A-5301-15T4 10 "Central to deciding whether joinder is prejudicial is 'whether, assuming the
charges were tried separately, evidence of the offenses sought to be severed would
be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" State
v. Oliver, 133 N.J. 141, 150-51 (1993) (quoting State v. Pitts, 116 N.J. 580, 601-02
(1989)). See also Pressler & Verniero, Current N.J. Court Rules, cmt. 2.3.1 on R.
3:15-2 (2019) ("[S]eparate crimes have a sufficient nexus to each other to justify
joinder if proof of one crime would be admissible as proof of the other pursuant to
N.J.R.E. 404(b)."). If the evidence would be admissible at each trial, then the trial
court may try the counts together because the defendant "will not suffer any more
prejudice in a joint trial than he would in separate trials . . . ." State v. Coruzzi, 189
N.J. Super. 273, 299 (App. Div. 1983).
Under N.J.R.E. 404(b), evidence of other crimes, wrongs or acts is
inadmissible to prove a "defendant's criminal disposition as a basis for establishing
guilt of the crime charged." State v. Covell, 157 N.J. 554, 563 (1999) (citing State
v. Stevens, 115 N.J. 289, 293 (1989)). However, evidence generally inadmissible
under N.J.R.E. 404(b) is expressly admissible to prove other facts in issue, such as
"motive, intent, plan, knowledge, identity, or absence of mistake or accident."
Covell, 157 N.J. at 563-64 (quoting Stevens, 115 N.J. at 293).
A-5301-15T4 11 To be admissible, evidence otherwise excluded by N.J.R.E. 404(b) must
satisfy the four-part test set forth in State v. Cofield, 127 N.J. 328, 338 (1992).
Covell, 157 N.J. at 564. Thus, for evidence of other crimes or acts to be admissible,
such evidence must: (1) be relevant to a material issue; (2) be similar in kind and
reasonably close in time to the offense charged; (3) be clear and convincing; and (4)
have a probative value that outweighs its apparent prejudice. Cofield, 127 N.J. at
338.
Here, the trial court analyzed and applied the Cofield factors. The court found
the evidence of the crimes committed during the three incidents clear and
convincing, and that the probative value of such evidence outweighed its prejudice,
given the evidence of the other incidents was relevant and material to identifying
defendant as one of the perpetrators. Specifically, the court noted all three incidents
occurred in physical and temporal proximity, shared a common motive, and bore
similar characteristics revealing a common scheme or plan. The court elaborated
upon those characteristics in its oral opinion, stating:
[T]he three robberies are similar in character and are based on the same act[s] or transactions which constituted parts of a common scheme or plan, that plan being robbery. I note that all three robberies occur[red] within a five to ten mile range of each other. Each robbery included two males holding a gun and a metal [pipe] with the male wearing dark clothing
A-5301-15T4 12 and masks to cover – each of the males wearing dark clothing and masks to cover their faces.
The choice of victims appeared to be commercial establishments. The first two robberies took place within a two hour span and the first two were located approximately five miles apart from each other.
The victims in each robbery were threatened with a hand gun and metal [pipe] and both of these weapons were used to gain access to money.
The third robbery occurred approximately three days later. It occurred on August fifth and again involved another commercial establishment using the same weapons and the same common scheme. . . .
The executions of these three crimes are of a similar fashion. All three defendants had an assignment for the execution of these robberies and the same weapons were used in each of these events. For an example[,] each party [was] assigned to enter with a weapon[] and take money or drive the getaway vehicle . . . .
You have here robberies, two of which occurred within two hours of one – of each other. You have the third one occurring within three days of the two. And as I said in each of these robberies each defendant had an assigned job for the execution of each of these robberies. And again in each robbery the assailants covered their faces and used weapons . . . .
In addition, the court found Rivera's and Marson's anticipated testimony at trial
would clearly establish defendant's role in all three incidents.
A-5301-15T4 13 In our view, for the reasons expressed in its decision, the trial court's
admission of evidence of all three incidents was not an abuse of discretion under
Cofield. They bore similarities that made joinder of all counts related to the two
robberies and the attempted robbery appropriate, in order to show the robberies were
committed by the same individuals, which included defendant.
The similarities included that Rivera drove the getaway car while Marson and
defendant carried out the robberies and attempted robbery at similar commercial
establishments in the same municipality. The first two robberies were just hours
apart and the third incident occurred just two days later. Marson wielded a metal
pipe and defendant a gun during each incident. Both were dressed in black and had
covered their faces.
Even if the trial on any one of the incidents had been tried separately, evidence
of the other two incidents would have been admissible under N.J.R.E. 404(b),
because such evidence was probative of defendant's identity, plan, and scheme to
commit the other robberies. See State v. Morton, 155 N.J. 383, 451-52 (1998).
Defendant argues that, given Rivera and Marson were going to testify and
their anticipated testimony would establish defendant's role in any one of the
incidents, there was no need to introduce evidence of the other two incidents.
Therefore, he should have been tried for only one incident at a time. We disagree.
A-5301-15T4 14 The jury may not have found the co-defendants' testimony defendant
participated in any one of the incidents credible. Therefore, other evidence to show
a common scheme or similarity among the incidents was necessary. Such evidence
included the location and the timing of the other incidents, the weapons used, and
the role and actions of each perpetrator. Therefore, we reject defendant's contention
the trial court erred by failing to sever the three counts of robbery.
B
Defendant contends the police coerced the co-defendants into testifying at
trial that defendant was one of the culprits involved in the three incidents. We reject
this contention as wholly without support in the record. Defendant also contends the
police failed to adhere to the holding in State v. Henderson, 208 N.J. 208 (2011), by
impermissibly suggesting to the co-defendants that defendant was involved in the
three incidents. We reject this contention as well, because it was well established
all three defendants frequently socialized before the subject incidents and were
highly familiar with each other. No amount of police suggestiveness could have
influenced the co-defendants' identification of defendant.
C
For the first time on appeal, defendant argues that certain comments made by
the prosecutor during her summation were grossly prejudicial and deprived him of a
A-5301-15T4 15 fair trial. Because this argument was not raised below, we consider it under a plain
error standard of review, and will reverse only if the error was "clearly capable of
producing an unjust result." State v. Macon, 57 N.J. 325, 337 (1971) (quoting R.
2:10-2).
Before reciting the subject comments, we set forth an excerpt from defendant's
summation:
Mr. Johnson was not involved in these crimes with Jarell Marson or Ricardo Rivera. There is no reliable testimony before you as to who that third person was, because it was not Mr. Johnson. There is no DNA evidence, there is no fingerprint evidence, although [from] my recollection of the testimony, and it may actually I think have showed up in the videos, is that clearly with regard to the first incident at the 7-Eleven on August 2nd and with regard to what occurred at Wendy's also on August 2nd of 2012, there did not appear to be gloves worn and there did not appear to be any fingerprint evidence.
....
Is there any testimony at all that attempts were made to fingerprint the door handles? Were there any prints at all acquired? Were there any prints attempted of the phone in the center console? Would that evidence not have been helpful? And if – or would it not at least have been helpful to know that it didn't exist? But we will never know that because they didn't do their job.
A-5301-15T4 16 Again, we'll never know the truth. The police made up their minds. They ignored the other names. How unreasonable is it for them to investigate and do this, do it right? They failed to fingerprint the phone. . . . The lack of professionalism, the intimidation, the coercion, that's the problem with this case. And, that's – and the problem is two self-motivated liars who are willing to sacrifice an innocent man so they can get out earlier.
The comments the prosecutor made that defendant contends were
prejudicial are:
Well ask yourself, I've tried enough of these cases and when I get fingerprints, this is always what's said. Well his fingerprint's in the car, but all that shows you is that he was sitting in the car at some point. Well his DNA's on a water bottle, but all that shows you is that at some point he drank from that water bottle. It doesn't put him in the car, fingerprints don't put him in the car on the fifth [of August], or the second [of August]. DNA on a water bottle doesn't put him in the 7-Eleven, or the Wendy's, or the second 7-Eleven on any date.
Defendant's specific objection to the prosecutor's comments is that the
prosecutor made reference to her personal experiences, and belittled defendant's
claim there was no corroborative physical evidence linking him to the crimes.
The State counters that the prosecutor was merely responding to defendant 's
criticism of the State for failing to gather fingerprint and DNA evidence.
A-5301-15T4 17 Even if a prosecutor's comment during summation exceeds the bounds of
proper conduct, "[a] finding of prosecutorial misconduct does not end a
reviewing court's inquiry because, in order to justify reversal, the misconduct
must have been 'so egregious that it deprived the defendant of a fair trial.'" State
v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83
(1999)). "Our task is to consider the 'fair import' of the State's summation in its
entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v.
Wakefield, 190 N.J. 397, 457 (2007)).
Having reviewed the record, we are satisfied the prosecutor's comment
observing that defendant's argument has been raised by defendants in other
matters did not deprive him of a fair trial. The thrust of the prosecutor's remarks
– that DNA or fingerprint evidence would not have been probative – was fair
comment made in response to defendant's summation. See State v. Engel, 249
N.J. Super. 336, 379 (App. Div. 1991) (holding the prosecutor's statements in
response to an attack upon the integrity of the State's investigation was not
error). We are satisfied the prosecutor's comments here do not provide any basis
to overturn the verdicts.
A-5301-15T4 18 D
Defendant attacks the court's failure to merge certain offenses. With
respect to the incident on August 5, 2012, among other things, the jury found
defendant guilty of second-degree conspiracy to commit robbery and third-
degree attempted theft. The court did not merge the latter two offenses.
Defendant was sentenced to a seven-year term of imprisonment for the
conspiracy conviction and to a four-year term for the attempted theft conviction.
The court ordered both convictions to run consecutively to the fifteen-year term
of imprisonment imposed for the first-degree robbery committed at the 7-Eleven
on August 2, 2012, as well as to the fifteen-year term of imprisonment imposed
for the first-degree robbery committed at Wendy's, on August 3, 2012.
On appeal, defendant maintains the trial court should have merged the
conviction for conspiracy with the one for attempted theft. The State agrees
both offenses should have been merged, but contends the conviction for
attempted theft should have been merged with the one for conspiracy.
If a defendant has been convicted of an offense and conspiracy to commit
the same offense, the conspiracy conviction merges with the completed offense.
State v. Soltys, 270 N.J. Super. 182, 189 (App. Div. 1994); State v. Hardison,
99 N.J. 379, 385-86 (1985). The reason the conspiracy conviction merges with
A-5301-15T4 19 the one for the substantive offense is that the "conviction of the completed
offense will adequately deal with the conduct." Hardison, 99 N.J. at 386.
However, if a defendant is convicted of conspiracy to commit an offense and a
lesser-included offense, the conviction of the lesser included offense merges
with the conviction for conspiracy to commit such offense. See State v. Connell,
208 N.J. Super. 688, 695 (App. Div. 1986).
Here, it is not disputed a theft or attempted theft is required for a robbery
conviction. State v. Farrad, 164 N.J. 247, 257 (2000). Both theft and attempted
theft are lesser-included offenses of the crime of robbery under N.J.S.A. 2C:1-
8(d), because both are "established by proof of the same or less than all the facts
required to establish the commission of the offense charged." N.J.S.A. 2C:1-
8(d)(1). Accordingly, here, the conviction for attempted theft merges with that
of conspiracy to commit robbery, and the sentence imposed for the conviction
of attempted theft must be and is vacated.
Defendant was convicted of various aggravated assault charges arising out
of the first two incidents. Defendant argues the convictions for aggravated
A-5301-15T4 20 assault arising out of these two incidents should have been merged with the
corresponding robbery conviction arising out of each robbery.1
The State agrees the aggravated assault convictions should merge, with
the exception of counts three and four, which pertain to two of the three
aggravated assaults committed at the 7-Eleven on August 2, 2012. The State
maintains those two assaults were unrelated to the commission of the robbery.
We disagree.
Our review of the record reveals the assaults charged in counts three and
four were inflicted to effectuate the robbery; therefore, these two counts must
merge with the robbery conviction that arose out of the incident at the 7-Eleven
on August 2, 2012. Therefore, counts three, four, and five shall merge with
count one, the count charging defendant with committing a robbery at the 7-
Eleven on August 2, 2012. Counts twelve, thirteen, fourteen, and fifteen shall
merge with count ten, the count charging defendant with committing a robbery
at Wendy's. The sentences imposed for counts three, four, five, twelve, thirteen,
fourteen, and fifteen are vacated. As a practical matter, the merger of these seven
1 The counts charging defendant with aggravated assault that arose out of the incident at 7-Eleven on August 2, 2012 are three, four, and five. Those counts charging him with this offense that arose out of the incident at Wendy’s on August 3, 2012 are counts twelve, thirteen, fourteen, and fifteen. A-5301-15T4 21 counts does not affect the aggregate sentence, as the court ordered the sentences
imposed for aggravated assault to run concurrently.
Finally, defendant contends his sentence was excessive. Defendant was
sentenced to an aggregate term of forty-one years. The consecutive sentences
were: fifteen years for first-degree robbery of the 7-Eleven on August 2, 2012
(count one); fifteen years for first-degree robbery of Wendy's on August 3, 2012
(count ten); four years for third-degree attempted theft at the 7-Eleven on August
5, 2012 (count twenty-one "A"); and seven years for second-degree conspiracy
to commit robbery at the 7-Eleven on August 5, 2012 (count twenty-two). With
the merging of the two latter convictions, defendant's aggregate term of
imprisonment is thirty-seven years; the sentences on the remaining counts are to
run concurrently.
We are satisfied from our review of the record that the sentence was not
excessive. As for the consecutive terms of imprisonment, the court sentenced
defendant in the middle range for the first-degree offenses and at essentially the
midpoint range for the second-degree offense.
Although defendant was only nineteen years of age when he committed
the subject offenses and had not been convicted of any offenses as an adult, the
trial court considered defendant's juvenile history. The court noted defendant
A-5301-15T4 22 had been adjudicated a delinquent for burglary in 2008 and robbery in 2010, and
served time for the latter offense at the State Home for Boys in Jamesburg for
approximately thirteen months before being released on juvenile parole. While
on parole he committed the subject offenses.
The court properly weighed and considered each aggravating and
mitigating factor, see N.J.S.A. 2C:44-1(a) and (b), as well as the factors in State
v. Yarbough, 100 N.J. 627, 643-44 (1985). The court's reasons for imposing the
sentence were supported by competent and credible evidence in the record. See
State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Cassady, 198 N.J. 165, 180
(2009) (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)).
We have considered defendant's remaining arguments, and determine they
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
The convictions are affirmed. The sentences are affirmed with the
exception that the conviction for attempted theft shall merge with the conviction
for conspiracy to commit robbery, and the sentence imposed for the conviction
of attempted theft is vacated. As for the aggravated assault convictions, counts
three, four and five shall merge with count one, and counts twelve, thirteen,
fourteen, and fifteen shall merge with count ten. The sentences imposed for
counts three, four, five, twelve, thirteen, fourteen, and fifteen are vacated. The
A-5301-15T4 23 matter is remanded to the trial court so it may correct the judgment of conviction
in accordance with this opinion.
Affirmed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
A-5301-15T4 24