STATE OF NEW JERSEY v. JOSEPH EDWARDS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3564-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH EDWARDS,

Defendant-Appellant.

________________________________________________________________

November 24, 2010

Submitted November 9, 2010 - Decided

Before Judges Carchman and Graves.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-08-01212.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Joseph Edwards was convicted of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2; second-degree robbery, N.J.S.A. 2C:15-1; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The trial judge sentenced defendant to an aggregate seven-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, together with statutory fines and penalties.

These are the relevant facts adduced at trial. According to co-defendant Wayne Ward1 who testified as a State's witness, on April 24, 2007, at approximately 10:00 p.m., defendant and Ward found themselves without money and decided to commit a robbery to secure funds to buy gas for defendant's car. Defendant informed Ward that there was an unloaded gun in the trunk of the car. After retrieving the gun and realizing that they had no ammunition, defendant and Ward decided to "get some females."

That same evening, at approximately 11:30 p.m., Katelyn Velasco, Melissa Nagy and Jessica DiCristina, students at Rutgers University who were returning from Newark Airport, parked their car on the corner of Delafield Avenue and Hartwell Avenue in New Brunswick. They proceeded to walk the four blocks to their apartment when, upon entering Guilden Street, Nagy observed a tan vehicle. Defendant and Ward exited the vehicle and cornered DiCristina, who had become separated from Nagy and Velasco, whereupon defendant shoved a gun into DiCristina's waist while Ward grabbed her and took her pocketbook. Defendant and Ward then fled to the vehicle with the gun and pocketbook and drove off. Velasco, in possession of a cell phone, proceeded to call 911 and described the car and defendants to the dispatcher.

After being dispatched to the scene of the robbery, New Brunswick Police Officer Amish Shah observed a tan vehicle proceed through a stop sign. As the vehicle passed the officer, he observed that the passenger matched the description of the suspects involved in the robbery. The officer signaled Wade to stop, but the vehicle sped up instead. Wade told defendant to discard the gun, and defendant threw the gun out of the driver's side window. Officer Michael Negveskey, backing up Officer Shah, observed a black object come out of the vehicle's window and later determined that it was an unloaded handgun.

The vehicle was stopped, and defendants were ordered to exit. After a search of the vehicle, a white purse was recovered. Within fifteen minutes, DiCristina and Velasco were driven to defendant's vehicle, and Velasco identified defendant and Ward as the men who robbed DiCristina.

Defendant testified on his own behalf and contradicted the testimony of Ward. According to defendant, he neither planned the robbery with Ward nor saw or handled the gun used in the robbery. He denied that he threw it out of the car window.

He disputed Ward's account of the events leading up to the robbery and claimed that Ward, without warning, pulled the car to the side of the road and told defendant to "walk with me." He claimed that Ward stopped DiCristina and cornered her. He further denied any discussion of robbing anyone and did not know that Ward had a gun until he placed it against DiCristina's waist. Finally, he asserted that Ward threw the gun out of the car.

On appeal, defendant raises the following issues:

POINT I THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY OF CONSPIRACY TO COMMIT ARMED ROBBERY AND ROBBERY; MAKING THE VERDICT OF GUILTY AGAINST THE WEIGHT OF EVIDENCE.

A. The Jury Erred in Finding The Defendant Guilty Of Robbery Where The Evidence Failed To Support The Elements Of The Statute.

B. The Jury Erred In Finding The Defendant Guilty of Conspiracy to Commit Robbery Where The Evidence Was Insufficient To Establish An Agreement.

POINT II THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO DEVIATE FROM THE PRESUMPTIVE TERM OF IMPRISONMENT AND IMPOSE A PROBATIONARY SENTENCE.

Addressing defendant's first argument that the verdict was against the weight of the evidence, we first set forth some basic principles that inform our decision.

When reviewing a verdict, great deference is afforded to the decision of a jury. See State v. Davis, 229 N.J. Super. 66, 81 (1988); State v. Afanador, 134 N.J. 162, 178 (1993). A reviewing court must sift the evidence to determine whether a jury could have rationally found that the essential elements of the crime were proved beyond a reasonable doubt. Afanador, supra, 134 N.J. at 178. Even if the State's evidence was equivocal, "a reviewing court should not overturn the findings of a jury merely because the court might have found otherwise if faced with the same evidence." Id. "Unless no reasonable jury could have reached such a verdict, a reviewing court must respect a jury's determination." Id.

Our review of the record leads us to conclude that the evidence against defendant was significant. The jury had the opportunity to assess not only the credibility of the State's witnesses but defendant as well. Moreover, the jury had before it explicit testimony from Ward as to the planning and implementation of the robbery. While defendant challenged and contradicted the bona fides of Ward's version, the jury was able to judge credibility and render a verdict based on the evidence before it.

We also reject defendant's argument that there was insufficient evidence to support a finding of guilt as to second-degree robbery and second-degree conspiracy. To the contrary, the jury heard testimony that defendant wielded a handgun and threatened DiCristina resulting in the robbery of her purse. See State v. Lopez, 187 N.J. 91, 98 (2006) (holding that among the elements of robbery are (1) theft; (2) intimidating or assaultive conduct; (3) the intimidating or assaultive conduct must have occurred during the theft; and (4) defendant must have acted purposely). Moreover, testimony revealed that defendant and Ward discussed and agreed on the robbery beforehand, including specific details regarding the commission of the crime.

As to defendant's sentence, we have carefully reviewed the record and find that defendant's arguments are without merit. R. 2:11-3(e)(2). We agree with the trial judge that the aggravating factors outweighed the mitigating factors; moreover, the judge properly rejected defendant's arguments as to additional mitigating factors.

A

1 Ward previously entered a plea of guilty to first-degree robbery, N.J.S.A. 2C:15-1.