State v. Rodgers
| Docket Number | A-3561-21 |
| Decision Date | 27 December 2023 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. GEORGE T. RODGERS, a/k/a GARY ADAMS, JEFFREY REID, and JIM JOHNSON, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
1
STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
GEORGE T. RODGERS, a/k/a GARY ADAMS, JEFFREY REID, and JIM JOHNSON, Defendant-Appellant.
No. A-3561-21
Superior Court of New Jersey, Appellate Division
December 27, 2023
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.
Argued October 11, 2023
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 20-110618.
Colin Sheehan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Colin Sheehan, of counsel and on the briefs).
Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (LaChia L. Bradshaw, Burlington
County Prosecutor, attorney; Alexis R. Agre, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
Before Judges Haas and Puglisi.
PER CURIAM
Tried to a jury, defendant George T. Rodgers was convicted of second- degree robbery, N.J.S.A. 2C:15-1(a)(2), and was sentenced to an extended term of fifteen years pursuant to N.J.S.A. 2C:44-3(a), with an eighty-five percent parole ineligibility term pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant presents two points for our consideration:
POINT I
RODGERS WAS DENIED DUE PROCESS AND A FAIR TRIAL BY THE TRIAL COURT'S FAILURE TO CHARGE THE JURY ON THE CRUCIAL AND CONTESTED ISSUE OF IDENTIFICATION
POINT II
RODGERS' SENTENCE MUST BE REVERSED AND HIS CASE REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT: (1) FAILED TO CONSIDER THE RELEVANT MITIGATING FACTORS; AND (2) APPEARS TO HAVE CONSIDERED THE WRONG SENTENCING RANGE
Defendant's pro se supplemental brief further argues the trial court erred in denying his motion to dismiss the indictment because the State failed to show he threatened another with the purpose to put the person in fear of immediate bodily injury.
We have considered these arguments in light of the record and applicable legal standards and affirm defendant's conviction and sentence.
I.
Defendant was charged with robbing a bank in Bordentown. The State adduced the following facts at trial. Around noon on January 24, 2020, an individual entered the bank and handed the cashier a purple bag imprinted with "Crown Royal" and a note on a white piece of paper that said, "give me the money, no dye bags." The teller complied with the demand, placed $6,779 in cash in the bag and handed it back to the individual, who exited the bank and left on a bicycle.
The teller described the individual as a tall Black man, wearing a black ski mask, light blue hooded sweatshirt, dark gray sweatpants and dark Nike sneakers. Because he wore a ski mask, no one in the bank saw the individual's face or was able to identify defendant as the perpetrator.
Detectives reviewed several surveillance videos around the time and scene of the robbery. Video from a nearby restaurant parking lot showed an individual park a gray Hyundai Santa Fe prior to the robbery. The individual, wearing a ski mask without a mouth hole, exited the vehicle and removed a bicycle from the rear of the vehicle. The individual wore a light blue hooded sweatshirt with a white marking on the left sleeve, a tan shirt underneath, dark gray sweatpants and dark Nike sneakers, and held a white piece of paper in his hands. Surveillance video from a different vantage point showed the Hyundai had a large dent in the hood.
Video after the robbery showed the individual wearing the ski mask return to the vehicle moving more quickly, holding the paper and another dark object in his hands. The individual placed the bicycle in the rear of the vehicle and did not remove the mask until he reentered the vehicle. As he drove out of the lot, the vehicle passed directly in front of an officer who was on the lookout for the perpetrator on a bicycle. The officer's mobile video recorder (MVR) showed the vehicle's rear light was not fully functioning, and also captured part of the vehicle's wheelchair symbol license plate, over which was a cover displaying a car dealership insignia. The MVR also revealed the individual had significant facial hair protruding from his chin.
Utilizing the vehicle and plate details along with the location of the robbery, detectives conducted a search of the state motor vehicle registry, narrowing possible matches to residences closest to Bordentown. One of the potential vehicles belonged to defendant's father, who lived in Trenton. About six hours after the robbery, detectives arrived at the father's residence to view the vehicle and saw defendant on the street outside the house, standing in front of a gray Hyundai Santa Fe. When defendant went into the house, detectives were able to more closely view the vehicle, which was similar to what had been seen on surveillance video and the MVR. Defendant then came out of the house and left in the vehicle.
Upon executing a motor vehicle stop, officers observed defendant had facial hair on his chin and was wearing gray sweatpants and dark Nike sneakers with markings similar to those seen on the surveillance video. A search of defendant incident to his arrest revealed he had $867 in his wallet.
Detectives then executed search warrants of the vehicle and residence. They located a bicycle, which was propped up by the dining room table, consistent with the one in the video. They found a black ski mask with no mouth hole on the air conditioning unit. Detectives also discovered a tan t-shirt and light blue hooded sweatshirt intertwined with a pair of gloves and a purple
"Crown Royal" bag hidden under a mattress in a bedroom. The sweatshirt had a white marking on the left sleeve consistent with the one worn by the individual in the surveillance video. Detectives noticed a ceiling tile in the bedroom was askew, and upon looking in the ceiling area found $4700 in cash.
Defendant was indicted for second-degree robbery and third-degree theft by unlawful taking. A person is guilty of robbery pursuant to N.J.S.A. 2C:15-1(a)(2) "if, in the course of committing a theft, he . . . [t]hreatens another with or purposely puts him in fear of immediate bodily injury." Defendant filed a motion to dismiss the indictment for robbery, arguing there was no evidence that he threatened the bank employees or put them in fear of immediate bodily injury. The judge denied the motion, finding:
The context of this case is important to consider. The allegation is that the defendant passed a note to a bank teller which read, "give me the money, no dye bags." Most bank tellers are separated from the general public by a protective shield. A grand jury could draw a rational inference from the passing of the note that the defendant's intention was to cause the teller to be fearful of the consequences if the money were not provided. The defendant would not likely have been able to take any money given the existence of the protective shield and therefore the money was given based on an implicit threat of harmful consequences if the demand was not honored. While the teller may have been protected by the protective shield, the teller cannot predict what may have occurred if the money were not given to the defendant. The phrase "or else" is strongly
implied following the phrase "give me the money." Additionally, the mentioning of "no dye bags" in the note suggests a level of sophistication on behalf of the defendant which could imply that the defendant had done this before and was someone with whom the teller should not trifle.
The case was then tried before a jury. During the charge conference, the assistant prosecutor requested the judge read the in-court identification jury charge. See Model Jury Charges (Criminal), "Identification: In-Court Identification Only," (rev. July 19, 2012). The judge noted there had been no identification of defendant during the trial-the bank witnesses could not identify defendant as the perpetrator and the law enforcement witnesses only identified defendant as the person they had arrested. The assistant prosecutor asked defense counsel if he agreed with the court's position, to which counsel replied, "I don't think . . ." and then the judge ruled the identification charge was not necessary because there was no in-court identification.
After the jury found defendant guilty of second-degree robbery, the State moved for sentencing as a persistent offender under N.J.S.A. 2C:44-3(a). The court found defendant eligible for an extended term of imprisonment because he was over the age of twenty-one at the time of the robbery and had been convicted on at least two separate occasions of two crimes committed at different times
when he was at least eighteen years old, the latest of which was within ten years of the robbery.
In support of the State's request for an eighteen-year sentence, the assistant prosecutor noted defendant had committed twelve prior indictable offenses and four prior non-indictable offenses. He was previously sentenced to a fourteen-year term of imprisonment with a seven-year parole ineligibility term as a persistent offender in 2012 for second-degree possession of CDS with intent to distribute. Defendant committed the robbery less than a year after his release for the CDS offense. Defense counsel did not contest defendant's eligibility for extended sentencing but requested the court exercise its discretion not to impose it.
In sentencing defendant, the court addressed aggravating and mitigating factors pursuant to N.J.S.A. 2C:44-1(a) and (b). The court found aggravating factor three (the risk that defendant will commit another offense), which was "borne out by the number of convictions he has had" and gave the...
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