State v. Robinson

• Decision Date: 21 January 1992
• Citation: 253 N.J.Super. 346,601 A.2d 1162
• Parties: STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Jules ROBINSON, Defendant-Appellant and Cross-Respondent. STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. James GORMAN, Defendant-Appellant and Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 346

253 N.J.Super. 346

601 A.2d 1162

STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Jules ROBINSON, Defendant-Appellant and Cross-Respondent.

STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. James GORMAN, Defendant-Appellant and Cross-Respondent.

Superior Court of New Jersey Appellate Division.

Argued and Submitted Nov. 4, 1991. ¹

Decided Jan. 21, 1992.

Robert L. Sloan, Asst. Deputy Public Defender, for defendant-appellant and cross-respondent Jules Robinson (Wilfredo Caraballo, Public Defender, attorney; Robert L. Sloan, of counsel and on the brief).

Wilfredo Caraballo, Public Defender, for defendant-appellant and cross-respondent James Gorman (Katherine F. Graham, Designated Counsel, of counsel and on the brief).

Deborah A. Siegrist, Asst. Prosecutor, for plaintiff-respondent and cross-appellant (Stephen G. Raymond, Burlington County Prosecutor, attorney; Deborah A. Siegrist, of counsel and on the brief).

Before Judges J.H. COLEMAN, BILDER and STERN.

The opinion of the court was delivered by

STERN, J.A.D.

Defendants Jules Robinson and James Gorman were indicted with Denise Bugyi for armed robbery, N.J.S.A. 2C:15-1a(2) (count one), and aggravated assault, N.J.S.A. 2C:12-1b(4) (counts two and three). Bugyi entered a guilty plea and testified for the State at the joint trial of Gorman and Robinson (defendants). At the conclusion of the State's case defendants successfully moved to have count three, alleging aggravated assault by pointing a firearm at Carl Middleton, dismissed. Defendants were both thereafter found guilty of armed robbery and the remaining charge of aggravated assault involving Bruce Forrester.

After the trial judge denied Robinson's motion for a new trial based on newly discovered evidence, the judge denied the State's request that both defendants be sentenced to mandatory extended terms as second Graves Act offenders under N.J.S.A. 2C:44-3d. The judge merged count two, the aggravated assault charge, into count one, the armed robbery charge, and sentenced both defendants to eighteen years with a six year period of parole ineligibility.

On this appeal Gorman argues:

POINT I DEFENDANT'S CONVICTION FOR FOURTH DEGREE AGGRAVATED ASSAULT SHOULD BE VACATED (NOT RAISED BELOW).

POINT II THE TRIAL JUDGE COMMITTED PLAIN ERROR IN FAILING SUA SPONTE TO ACQUIT DEFENDANT FOR AGGRAVATED ASSAULT UNDER R. 3:18-1, 3:18-2, AND 3:20. (NOT RAISED BELOW).

POINT III THE PROSECUTOR'S COMMENTS MADE IN SUMMATION HAD THE CLEAR CAPACITY TO DEPRIVE DEFENDANT OF A FAIR TRIAL. (PARTIALLY RAISED BELOW).

POINT IV DEFENDANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL.

POINT V THE TRIAL COURT'S INSTRUCTIONS TO THE JURY RESULTED IN REVERSIBLE ERROR BECAUSE IT RELIEVED THE STATE OF ITS BURDEN TO PROVE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT. (NOT RAISED BELOW).

POINT VI DEFENDANT IS ENTITLED TO HAVE HIS SENTENCE AND PAROLE ELIGIBILITY CALCULATED IN A MANNER CONSISTENT WITH N.J.S.A. 2C:44-5b(2) AND THE APPLICABLE CASE LAW.

POINT VII DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL IN THAT COUNSEL UTTERLY FAILED TO INVESTIGATE, PREPARE AND DEVELOP DEFENDANT'S APPROPRIATE APPLICATION FOR ALMOST 945 DAYS OF "GAP-TIME CREDITS" UNDER RICHARDSON V. NICKOLOPOULOS.

POINT VIII THE TRIAL COURT ABUSED ITS DISCRETION IN (1) FAILING TO ADDUCE SUFFICIENT EVIDENCE TO SUPPORT ITS FINDINGS OF AGGRAVATING FACTORS (2) DENYING THE APPLICABILITY OF

MITIGATING FACTORS AND (3) FAILING TO APPROPRIATELY WEIGH THE AGGRAVATING AND MITIGATING FACTORS.

Robinson contends:

POINT I THE TWO YEAR DELAY FROM DEFENDANT'S ARREST UNTIL THE COMMENCEMENT OF TRIAL VIOLATED HIS RIGHT TO A SPEEDY TRIAL. U.S. CONST.AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 10.

POINT II THE TRIAL JUDGE'S REFUSAL TO REINSTRUCT THE JURORS ON THE SPECIAL CREDIBILITY PROBLEMS RELATED TO ACCOMPLICE TESTIMONY DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL; U.S. CONST.AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 9, 10.

POINT III THE DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL ON THE BASIS OF NEWLY DISCOVERED EVIDENCE DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST.AMENDS V, VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10. ²

By timely cross appeals the State challenges the denial of its request that defendants be treated as second offenders under the Graves Act.

Our careful review of the record convinces us that the contentions raised on the appeals and cross appeals lack merit and do not warrant extended discussion, R. 2:11-3(e)(2), except as noted herein.

I.

The denial of defendants' motions for dismissal of the indictment on speedy trial grounds is affirmed substantially for the reasons stated by Judge Martin L. Haines in his letter opinion of March 20, 1989.

II.

We briefly recite the facts relevant to an understanding of the critical issues arising from the trial and motion for new trial. On January 9, 1987 at about 9:00 p.m. Bruce Forrester and Carl Middleton, both employees of Consumer Electronics in Maple Shade, travelled in separate cars to the Blason office of the First Fidelity Bank in Moorestown to make a night deposit of the day's proceeds. Forrester was carrying the deposit bag that day. As he was about to make the deposit Forrester noticed someone standing "in front of [his car] door." The man demanded the money and pointed a gun at Forrester's head from a distance of about 10"' to a foot. Forrester handed over the deposit bag which contained about $1,300.00 in cash and checks. Thereafter Forrester's car began to roll backward because Forrester had neglected to put the car in park while waiting for Middleton. The assailant moved in front of the car and fired the gun. Forrester then saw the assailant, later identified as Robinson, "stumbl[e] around" while facing Forrester and looking at the gun. Then the assailant fled "through the field and towards [an] office complex."

Middleton, who was in his car behind the Forrester vehicle, "observed a man sitting on a curb near the bank drop" as they pulled up. Middleton saw the man approach Forrester's car and "put a gun to his head". Middleton heard the man demand the money and saw Forrester hand the bank bag over to him. Middleton then observed the man walk 10-15 feet to the front of Forrester's car, turn, fire a shot and flee toward the adjacent field.

When responding police officers arrived at the scene, Sergeant Naylor discovered a .25 calibre automatic shell casing underneath the drive-in roof. Forrester and Middleton provided the police with formal statements. Middleton also assisted a police artist prepare a composite sketch of the robber the next day.

At approximately 10:30 p.m. the evening of the robbery, Paul Vallee, the manager of a Domino's Pizza store located near the First Fidelity Bank, observed a man enter the store and allowed him to make two telephone calls. Following the first call, a cab arrived and then departed without the man. Vallee thereafter allowed him to make another call. Subsequently a "silver or blue Trans Am or Firebird arrived with two occupants" to pick the man up. One of the occupants of the car was a female. Vallee could not identify the man in a photo array two months later.

At trial Forrester testified that Gorman had worked for Consumer Electronics from November 12, 1986 to December 24, 1986. He further stated that Gorman was familiar with the bank drop routine because he had participated as a "tagalong" in making bank deposits while employed at Consumer Electronics.

On February 8, 1987 Detective John Bratton of the Moorestown Township Police Department received a call from a detective in Mantua Township who advised Bratton that he had a witness in custody with information related to the robbery. Bratton and Lieutenant Howard Mann travelled to the Mantua Police Department and met Detective Gramlam of Mantua and Denise Bugyi. Bugyi subsequently provided Bratton with information regarding the crime, pled guilty and testified for the State at trial.

Denise Bugyi testified that she met Gorman on Christmas eve, 1986, through her ex-boyfriend, Fred Rouse, who was defendant Gorman's nephew. According to Ms. Bugyi, on January 9, 1987 about 7:30 p.m. she received a phone call from Gorman who asked her to drive "him and Jules to Consumer Electronics where he used to work [t]o rob the bank bag." She picked up Gorman in her blue 1985 Trans Am and was then directed by Gorman to "Jules' house," a room at the Ambler Motel in Brooklawn. The three then drove to a parking lot "across the street" from Consumer Electronics where they waited for Consumer Electronics employees to leave the store. As the employees left the store, Bugyi drove to the bank where Robinson, who had received a "small handgun" from defendant Gorman, was "dropped off". Bugyi and Gorman drove to a nearby "alley way" where Robinson was told to meet them. Gorman subsequently "got out of the car and walked to the back of the alley" to see what was happening at the bank.

According to Bugyi, about two minutes later Gorman ran back to the car and advised Bugyi that "he heard the gun go off." He further said that the gun was not supposed to go off because it was "broke or something."

As Robinson did not return to the location where they were to meet, she and Gorman drove around looking for him. Eventually Bugyi and Gorman drove back to Robinson's motel and asked his girlfriend if Robinson had returned. They then drove to Gorman's house where they received information that Robinson had called and was waiting for them at the Domino's Pizza. Bugyi and Gorman then drove to the pizzeria where they picked up Robinson between 10:30-11:00. Ms. Bugyi noted that Robinson appeared "upset and nervous because the gun had gone off". Both defendants were surprised the gun had fired and defendant Robinson remarked, "[m]an I could have shot that guy".

Bugyi further testified that Robinson told...