STATE OF NEW JERSEY v. HERBERT BROWN
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0726-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HERBERT BROWN,
Defendant-Appellant.
_______________________________________________________________
Submitted September 23, 2009 - Decided July 27, 2010
Before Judges Graves and J.N. Harris.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
06-06-0673.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Susan Brody,
Assistant Deputy Public Defender, of counsel
and on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh,
Senior Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
In a twenty-two count indictment, defendant Herbert Brown
was charged with three armed robberies of small grocery stores
in the City of Paterson on December 23, 26, and 27, 2005, and
various other offenses. Passaic County Indictment No. 06-06-
0673 charged defendant as follows: three counts of first-degree
armed robbery in violation of N.J.S.A. 2C:15-1 (counts one,
seven, and twelve); five counts of fourth-degree aggravated
assault (pointing a firearm) in violation of N.J.S.A. 2C:12-
1(b)(4) (counts two, three, eight, thirteen, and fourteen);
three counts of second-degree possession of a weapon for an
2C:39-4(a) (counts
unlawful purpose in violation of N.J.S.A.
four, nine, and fifteen); four counts of third-degree unlawful
possession of a handgun without a permit in violation of
N.J.S.A. 2C:39-5(b) (counts five, ten, sixteen, and eighteen);
four counts of second-degree possession of a handgun by a
prohibited person in violation of N.J.S.A. 2C:39-7(b) (counts
six, eleven, seventeen, and twenty-one); one count of third-
degree receiving stolen property in violation of N.J.S.A. 2C:20-
7 (count nineteen); one count of fourth-degree resisting arrest
in violation of N.J.S.A. 2C:29-2(a)(3) (count twenty); and one
count of third-degree hindering apprehension in violation of
N.J.S.A. 2C:29-3(b)(4) (count twenty-two). Count three,
charging defendant with fourth-degree aggravated assault, was
A-0726-07T4
2
dismissed on defendant's motion at the end of the State's case,
but a jury found defendant guilty on the remaining charges.1
At sentencing on June 8, 2007, the trial court noted the
case involved three first-degree "armed robberies of bodega type
stores with a firearm" and summarized "the facts that the jury
accepted" as follows:
The State is correct in the way to
describe this, this was three first[-]degree
armed robberies of bodega type stores with a
firearm. I think it's important, because of
the serious nature of these charges, just to
review the . . . facts. And these are the
facts that the jury accepted. . . .
. . . [O]n December 23rd of 2005
Paterson Police were investigating a robbery
that took place at 354 Market Street. Two
victims there, Juan Gomez and Gerardo Ayala.
And I had the opportunity to observe these
victims during the course of the trial.
They said the suspect entered the store
with a black, small automatic handgun, took
approximately $100 cash from the register.
The suspect then ran from Market Street and
Summer Street towards Park Avenue. And they
gave a complete description.
Then on December 26th, just three days
later, another armed robbery occurred at 954
East 19th Street. And here the victim[s]
[were] Francisco Reyes and [Karilyn] Reyes.
Here the suspect held Mr. Reyes at gunpoint.
At that time Mr. Reyes yelled out to his
1
Counts six, eleven, seventeen, and twenty-one, charging
defendant with second-degree possession of a handgun by a
prohibited person, were tried separately before the same jury
pursuant to State v. Ragland,
105 N.J. 189, 193 (1986).
A-0726-07T4
3
daughter, [Karilyn], to put the money in a
[bag] because there was a hold-up. The
suspect took approximately $300 in cash and
fled the store.
One day later, on December 27th 2005,
another armed robbery occurred at Aracena
Grocery located at 34 Essex Street. The
suspect held a gun to Miguel Lopez's head
and he ordered Mr. Lopez to the floor. The
suspect then ordered Jose Aracena to place
the money in a bag. The suspect took
approximately $700 in cash and then fled the
store south on Madison Street.
And then on the 28th there was -- the
investigation was very intense regarding
these robberies. And this defendant was
observed with a large group of males
congregating in an area. They focused on
him. He attempted to flee towards Park
Avenue. He matched the description of the
person who was wanted for the armed
robberies. He was apprehended at that time.
Black handgun was found in his waistband.
On counts one and twelve (first-degree robberies), the
to concurrent eighteen-year terms
court sentenced defendant
subject to an eighty-five percent period of parole ineligibility
under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; on
count seven (first-degree robbery), the court imposed a
consecutive eighteen-year term subject to NERA; and on count six
(second-degree possession of a handgun by a prohibited person),
the court imposed a consecutive five-year term with five years
of parole ineligibility. Concurrent sentences were imposed for
the other offenses. Thus, defendant's aggregate sentence was
A-0726-07T4
4
forty-one years in prison, with thirty-six years subject to
NERA, and an additional five-year period of parole ineligibility
for possession of a handgun by a prohibited person.
On appeal, defendant presents the following arguments:
POINT I
BECAUSE THE JOINDER OF ALL THREE ROBBERIES
FOR TRIAL WAS OVERWHELMINGLY PREJUDICIAL AND
DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL
RIGHT TO A FAIR TRIAL, HIS CONVICTIONS MUST
BE REVERSED. (Not Raised Below.)
POINT II
THE PROSECUTOR'S OPENING STATEMENT WAS SO
OUTRAGEOUSLY IMPROPER AS TO IRREPARABLY
TAINT THE OUTCOME OF THE TRIAL, REQUIRING
REVERSAL. (Not Raised Below.)
POINT III
THE PROCEDURE BY WHICH DEFENDANT WAS
IDENTIFIED WAS SO IMPERMISSIBLY SUGGESTIVE
AS TO CREATE A SUBSTANTIAL LIKELIHOOD OF
IRREPARABLE MISIDENTIFICATION, REQUIRING
REVERSAL OF HIS CONVICTIONS.
POINT IV
IN SENTENCING DEFENDANT ON THIS ROBBERY
SPREE, THE COURT ERRED IN FINDING AN
INAPPLICABLE AGGRAVATING FACTOR AND IN
REQUIRING THAT TERMS FOR TWO OF THE
ROBBERIES BE SERVED CONSECUTIVELY TO EACH
OTHER.
Based on our review of the record, the briefs, and the
applicable law, we are satisfied that defendant's arguments
pertaining to his convictions are without sufficient merit to
A-0726-07T4
5
warrant extended discussion. R. 2:11-3(e)(2). We remand,
however, for resentencing.
On the night of December 23, 2005, Juan Gomez and Gerardo
Ayala were working at Gomez's bodega on Market Street in
Paterson when a man they later identified as defendant came into
the store on two separate occasions. The first time he entered,
he bought candy and left. When he returned, defendant pointed a
gun at Gomez and demanded money. Gomez opened the cash
register, and defendant took approximately $800. Gomez and
Ayala both described the man who robbed the store to the police
and, according to Gomez, he had a good view of the robber
because he was in the store for two to three minutes, the store
was well lit, and the man "had nothing on his face."
The second robbery occurred three days later, at
approximately 6:45 p.m. on December 26, 2005, at a bodega that
was approximately 275 yards from the first robbery location.
Francisco Reyes and his daughter, Karilyn Reyes, a college
student, were working in their family owned grocery store in
downtown Paterson when a man they later identified as defendant,
entered the store and ordered a sandwich. As Francisco began
preparing the sandwich, defendant went behind the counter,
pulled out a gun, and demanded money. Francisco told his
daughter to put the money from the cash register into a bag and
A-0726-07T4
6
to give it to defendant. According to Karilyn, defendant was
holding a gun to her father's neck, so she put approximately
$300 to $350 into a bag and handed the bag to defendant.
Francisco and his daughter both testified that the store
was well lit, and they provided the police with a description of
the man who robbed them. They also gave the police the tape
from a video surveillance system that was operating at the time
of the robbery.
The third robbery occurred the following night, on December
27, 2005, at another small convenience store located about 100
feet from the first robbery. Miguel Lopez and Jose Aracena were
working at the store when it was robbed by a man they later
identified as defendant. According to Lopez, defendant
purchased a sandwich and left the store. When defendant
returned, he pointed a gun at Aracena and told him not to move.
Defendant then pointed the gun at Lopez and told him to put the
money in a bag. Lopez did as he was told and defendant left
with approximately $600. The police arrived within minutes, and
both men described the robber to the police.
As part of their investigation, the Paterson Police
Department prepared a description of the suspected robber and
distributed it among patrol officers within the department. The
suspect was described as a black male "in his thirties, between
A-0726-07T4
7
five foot five and five foot eight. About 170 to 190 pounds.
Clean shaven. Bald head with a mark or scar on his forehead.
. . . Suspect was wearing a black jacket [and] blue jeans." The
officers were also informed that the robberies occurred in the
midtown section "around 17th [Avenue], Park Avenue, Market
Street."
At about 9:15 p.m. on December 28, 2005, while Officer
Robert Orozto and his partner were on routine patrol in downtown
Paterson, he observed a large group of males "congregating on
the corner, making the sidewalk impassable." Orozto testified
he intended to issue summonses to the individuals for
obstructing a public passageway, but when he approached the
group, several individuals, including the defendant, fled on
foot. Orozto noticed that one of the men fit the description of
the robbery suspect and after a short chase, defendant complied
with Orozto's command to stop and to put his hands in the air.
When Orozto told defendant to turn around, he moved his right
hand toward his waistband. At that point, Orozto rushed him,
grabbed his hands and conducted a patdown for weapons. A loaded
handgun was recovered from defendant's waist area.
Defendant was initially charged with unlawful possession of
a weapon. However, because he matched the physical description
of the robbery suspect, his photograph was part of the photo
A-0726-07T4
8
lineups that were viewed by the victims. All six of the robbery
victims selected defendant's photo from photographic arrays, and
each of the victims made an in-court identification of
defendant. In addition, five of the six witnesses identified
the handgun that was recovered from defendant.
Although defendant did not file a severance motion, he
argues in his first point that reversal is required because "the
joinder of all three robberies for trial was overwhelmingly
prejudicial." We do not agree that the court's failure to sua
sponte order three separate trials had the potential to cause an
unjust result. R. 2:10-2. Rule 3:7-6 permits joinder of
multiple charges in a single indictment "if the offenses charged
are of the same or similar character or are 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."
In this case, defendant's use of the same handgun to rob
three small convenience stores within the same neighborhood
during a five-day period suggested a common plan or scheme to
target similar victims, and the three robberies were
sufficiently similar to warrant joinder. Even if the robberies
were tried separately, evidence of the similar crimes would have
been admissible as probative of defendant's motive, intent,
A-0726-07T4
9
plan, and identity under N.J.R.E. 404(b). Accordingly, the
charges were properly joined. See State v. Pitts,
116 N.J. 580,
601-02 (1989) (noting that the potential prejudice from joinder
of offenses is significantly lessened when "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. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif.
denied,
94 N.J. 531 (1983) ("[A] defendant will not suffer any
more prejudice in a joint trial than he would in separate
trials, because the evidence of the other alleged crimes would
be admissible in any event under [N.J.R.E. 404(b)].").
In his next point, defendant contends the prosecutor's
opening, which was not objected to, was inflammatory and unduly
prejudicial. Defendant must demonstrate plain error under Rule
2:10-2 to prevail. Plain error is "error possessing a clear
capacity to bring about an unjust result and which substantially
prejudiced the defendant's fundamental right to have the jury
fairly evaluate the merits of his defense." State v. Irving,
114 N.J. 427, 444 (1989) (citations omitted). In this case,
defendant asserts that the prosecutor's repeated reference to
"when is enough enough?" was "a call to arms" that requires
reversal. On the other hand, the State argues that the
prosecutor's opening "focused the jury's attention on the
A-0726-07T4
10
substantial evidence that the State expected to introduce at
trial."
As this court has previously noted, a prosecutor's opening
statement to the jury "should provide an outline or roadmap of
the State's case. It should be limited to a general recital of
what the State expects, in good faith, to prove by competent
State v. Walden,
370 N.J. Super. 549, 558 (App.
evidence."
Div.) (quoting State v. Torres,
328 N.J. Super. 77, 83-84 (App.
Div. 2000)), certif. denied,
182 N.J. 148 (2004). We have
considered the prosecutor's statements in light of the State's
proofs and the court's instructions to the jury, and we are
satisfied the prosecutor's comments did not deprive defendant of
a fair trial. See State v. Frost,
158 N.J. 76, 83 (1999) (to
constitute reversible error, prosecutorial misconduct must be
"so egregious that it deprived the defendant of a fair trial").
In his third point, defendant contends he is entitled to a
new trial because the out-of-court identification procedures
were so unduly suggestive that they created "a substantial
Following a Wade2
likelihood of irreparable misidentification."
hearing, the trial court found "the Attorney General's
Guidelines were properly followed" and the identification
2
United States v. Wade,
388 U.S. 218,
87 S. Ct. 1926,
18 L. Ed. 2d 1149 (1967).
A-0726-07T4
11
procedures utilized by the police were not impermissibly
suggestive. The court's findings and credibility assessments
regarding the out-of-court identification procedures are amply
supported by the record and are binding on us. State v.
Locurto,
157 N.J. 463, 474 (1999). Moreover, we conclude from
our independent review of the record that the out-of-court
identification procedures were reliable and properly admitted
into evidence.
Lastly, defendant asserts the court failed to articulate
reasons for imposing a consecutive eighteen-year term on count
seven. See State v. Miller, 108 N.J. 112, 122 (1987) ("A
statement of reasons is a necessary prerequisite for adequate
appellate review of sentencing decisions."). We agree the court
did not discuss the factors enumerated in State v. Yarbough,
100 N.J. 627, 643-44 (1985), cert. denied,
475 U.S. 1014,
106 S. Ct. 1193,
89 L. Ed. 2d 308 (1986). Accordingly, we remand for
reconsideration of the sentence on count seven. The court must
evaluate and analyze all of the Yarbough guidelines and
determine their applicability in the circumstances of this case,
in determining the appropriate length of the sentence on count
seven, and whether it should be served consecutively or
concurrently.
A-0726-07T4
12
Defendant also argues that the sentencing court erred in
finding aggravating factor two. N.J.S.A. 2C:44-1(a)(2) states
that "[t]he gravity and seriousness of harm inflicted on the
victim" may be considered as an aggravating factor in
determining a sentence. In applying this factor to defendant,
and in weighing the aggravating and mitigating factors, the
court stated:
So we have the . . . need to deter. We
have his prior record. He has a juvenile
record that goes back to '96, conspiracy to
distribute CDS. He violated his probation
on that. Then he had a carjacking referred
for adult disposition, which later on in
1997 he received ten years with five before
parole. Possession of a firearm for an
unlawful purpose. So he has this prior
offense which is of a violent nature with
the use of a handgun. That was in '97. And
then this string of robberies, again,
violent nature, use of a handgun.
So there's [a] very, very strong need
to deter. The Court also finds in this case
the victims were particularly vulnerable and
the harm on these victims was substantial.
To have these guns pointed in their face and
even held to their heads. Those are the
Mitigating factors,
aggravating factors.
there are none. The Court finds that the
aggravating factors overwhelmingly outweigh
the mitigating factors.
why the victims were
Thus, the court did not explain
"particularly vulnerable," or why it found that defendant had
a gun at the victims.
caused substantial harm by pointing
Moreover, none of the victims sustained any injuries, and the
A-0726-07T4
13
use of the gun elevated the robbery from a second-degree offense
to a first-degree crime. N.J.S.A. 2C:15-1(b). Under these
circumstances, the court should not have again considered the
use of the firearm as an aggravating factor. State v. Pillot,
115 N.J. 558, 564 (1989). See also State v. Kromphold,
162 N.J.
345, 353 (2000) ("[F]acts that established elements of a crime
for which a defendant is being sentenced should not be
considered as aggravating circumstances in determining that
sentence.").
Accordingly, the trial court must reconsider defendant's
sentence on count seven within the entire framework of Yarbough,
without weighing aggravating factor two in the balance. Of
course, the focus should be on the fairness of the overall
sentence. See State v. Natale,
184 N.J. 458, 488 (2005) ("The
touchstone is that the sentence must be a reasonable one in
light of all the relevant factors considered by the court.").
Except for defendant's sentence on count seven, we affirm.
The matter is remanded for reconsideration of the sentence on
count seven. We do not retain jurisdiction.
A-0726-07T4
14
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
