Appeals of Prior Conviction and Sentence of Conspiracy to Commit First-Degree Robbery and Other Crimes

State v. Herbert CRIMINAL LAW Unpublished Appellate Court NJ Filed.2020-12-18

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

Defendant Gregory Herbert appeals his prior conviction and sentence of 1) Conspiracy to commit first-degree robbery; 2) third-degree possession of a weapon for an unlawful purpose; 3) offense of fourth degree-degree aggravated assault by pointing a firearm; and 4) disorderly person theft.


The defendant and two other men by the names Michael Onyeagoro and Kadeem Charles met at Charles’s party before the robbery. The three men then left the party shortly after midnight to discuss the plan and location of a robbery. At approximately 2:30 am, the men arrived at a gas station that they were planning to rob. Each of them had a specific role to play. Oyeagoro distracted the gas station attendant by pulling up to get gas. As the attendant pumped gas into the car, Charles pointed a BB gun at the attendant. and the defendant stole computer equipment. The trio then fled the scene. Hillside PD received a “holdup alarm” from the gas station, a holdup alarm is a button pushed on an alarm system and alerts the police of an emergency. The Hillside Police Department intercepted Onyeagoro’s vehicle where he had been waiting for Charles and the defendant. Onyeagoro was arrested at the scene for possession of a weapon that was located under his seat. The other men were later arrested after Onyeagoro gave police a lead. Charles was arrested in July of 2014. His home was searched; he had contraband in his home that was seized by police. Then, the defendant was arrested one month later in Vermont and taken back to New Jersey.

Following the defendant’s arrest, he was taken in by the Hillside Police. The defendant was told his Miranda Rights and waived his rights. He denied being at the gas station the night of the crime and being with the other men. The defendant was not very receptive to the interrogation. Towards the end of the interrogation, the police asked if the defendant needed time to think things over and clear his head. The defendant’s replay was, “then I guess only one thing for you to do I guess go to court and well figure it out from there. I guess, I get a lawyer and then figure it out from there.” However, the police did not stop the interrogation. The defendant repeated numerous times that he wanted to “leave it up to the court”, alluding to end the interrogation. To end the interrogation, he said “No, I don’t have anything.”

In January 2015, Charles and the defendant were both convicted of the following charges: 1) the first-degree robbery; 2) first-degree conspiracy to commit a robbery; 3) second-degree unlawful possession of a weapon; 4) second-degree and third-degree possession of a weapon with unlawful purpose.

Issue No. 1  Invoking Right to Attorney — Miranda

In October 2016, the defendant had a Miranda hearing. The court found that the defendant was “calm and cooperative” and “appeared to be educated, articulate, and intelligent.” The defendant was questioned for over three hours. Well listening to the tape, the court noted, “while persistent, the officers did not raise their voice, threaten Mr. Herbert [the defendant], or try to trick him.” The court gained that the defendant knowingly, voluntarily, and intelligently waived his rights and agreed to speak to the detective. The court interpreted the defendant’s statement, “I guess I get a lawyer and then figure it out from there” as an allusion to the future. He did not invoke his right to counsel. The court interpreted “I don’t have anything else”, as him saying he had nothing more to say about the robbery specifically not that he was done with the interrogation altogether. If the defendant explicitly asked to finish the interview, that would be different. To prove that the defendant was at the scene of the crime, the state brought in an expert witness to pinpoint the location of the defendant’s phone the night of the robbery. The expert’s testimony revealed that the defendant was in that area the night of the crime. However, he could not pinpoint the exact location, only a seven-mile perimeter of where the phone was. According to the trial court, the expert’s testimony was credible.

Then, in June of 2017, the trial commenced again the state called on Onyeasgoro to testify about the text messages between the three on the night of the robbery. The first text message sent from Onyeasgoro text dad Charles for the defendant’s phone number and Charles did. Onyeasgoro testified that he texted the defendant too “contact him back about that ish we talked about it’s still in the office.” The exchange between the two men alluded to the robbery that night. In another text, he said, “alright. Nothing crazy. A quick grab and go.” Oyeasgoro later testified that he, the defendant, and Charles discussed the plan and then referenced another three robberies the three had committed together. Both defense attorneys objected and moved to a mistrial because Oyeasgoro spoke about crimes the three had committed. The court denied the motion for a mistrial but sustained the objection since the testimony related called character into question. Onyeasgoro also told the court that the defendant had a knife, the defendant or Charles threatened the attendant and that the defendant and Charles as the men on the surveillance video. His testimony was deemed credible.

Late June of 2017, the jury acquitted the defendant and Charles of robbery but found them both guilty of lesser sentences: fourth-degree aggravated assault by pointing a firearm and disorderly persons theft; second degree conspiracy to commit robbery; and second-degree possession of a weapon for unlawful purposes. The jury found the defendant was equally capable of the crimes despite the defendant’s assertion that Onyeasgoro was the true mastermind behind the robbery even though there was insufficient evidence to make that finding. The defendant was sentenced to 7 years without parole eligibility and supervision under the No Early Release Act (NERA) and subject to a 42-month period of parole ineligibility under the Graves Act. Under New Jersey law, it is considered a firearm and is subject to the same permitting procedures. The defendant could not provide documentation for permission to obtain this firearm. A BB gun is considered a toy to many; however, possession of a BB gun is punishable under the Grave’s Act. If charged and convicted, you could spend up to five years in prison. A BB gun is considered a firearm because it can cause injury to someone.

Point 1: The defense claims that the court erred in admitting the defendant’s statement to police because he invoked his rights to silence and then counsel.

The defendant is challenging that the court erred in admitting his statement to the police because he repeatedly invoked his right to remain silent and to counsel, but the police continued to interrogate him. The appellate court disagreed with this statement and came to the same conclusion as the trial court. The defendant answered all the detective’s questions without hesitation. He never told the detectives that he wanted to speak to an attorney or have one present. Instead, he spoke to them, denied him ever being at the gas station that night, and answered all their questions. The defendant did not seem reluctant to answer the detective questions or to be uncomfortable. The situation was described as, “throughout the interview… defendant… answered all the questions the detectives’ questions, disagreed with their accusation, and more than held his own.” Further, they said, “[a]t no time did he appear reluctant to answer their questions or to be uncomfortable. In fact, Herbert appeared… to be quite relaxed and at eas[e], comfortable, and confident during the entire interview and was rather talkative at times.” These circumstances contradict the defendant’s argument. Therefore, the court was correct in admitting the defendant’s statement in evidence.

Also, the defendant argued that he did not have any involvement in the robbery. In his interrogation, he denied that a phone number was his but was used in the trial and it was his. This questioned his credibility. Since his creditability was weakened, this made Onyeasgoro’s trial testimony more credible. The defense argued that the phone number denial had more weight than it did. The appellate court thought the phone number error did little to advance the State’s argument.

Point 2: The defendant’s convictions must be reversed due to the improper admission of testimony about the other uncharged robberies.

The appellate court agreed with the defense. The appellate court ruled to reverse the defendant’s conviction of conspiracy to commit a robbery. The trial court inaccurately applied Rule 404(b) without conducting an analysis. Rule 404(b) would allow Onyeasgoro testimony about the trio committing previous crimes together admissible as evidence. Rule 404(b) calls into question the character of the defendant. In the text exchange between the defendant and Onyeasgoro they discussed a “grab and go.” Neither of them mentioned force being used or threats which us essential elements to charging someone with conspiracy to commit robberies. Moreover, the texts did not discuss the plans for the robbery nor directly prove the robbery. If the text messages were admissible, they would have to prove there were a common plan and motive for the robbery, unlawful possession of a firearm, or possession of a firearm with unlawful purposes. The appellate court reversed the defendant’s convictions for aggravated assault by pointing a firearm, theft, possession of a firearm for unlawful purposes, and conspiracy to commit robbery. However, the appellate court remanded a retrial after conducting a proper Rule 404(b) analysis and has the possibility of being convicted for these crimes again.

Point 3: The trial court erred in admitting entirely irrelevant expert testimony about the cell phone data.

The expert witness the State used was Adam Durando. Durando was an expert in cellular telephone records, cellular mapping programs, and cell-cite analysis. According to [State v. Jenewics], there is a three-part test for the admission of expert testimony. 1) Intended testimony must concern the subject matter that is beyond the knowledge of the average juror; 2) The field testified to last be a state of art search that the expert testimony could be sufficiently reliable and 3) The witness must have sufficient expertise to offer so extended testimony.  The defense contested point two. That the expert information was not sufficiently reliable. Durando could not pinpoint the exact location of the defendant’s cellphone but he could provide a 7-mile radius of where the defendant’s phone was located. The defendant was within a 7-mile radius of where the gas station was and so were the other two men. Durando showed evidence of them being in Hillside between 2:34- 2:37 am when the robbery took place. However, the expert’s testimony was deemed unreliable because the radius was wide and showed that they were all connected to the same tower for hours. At most, the court could dictate that they were in the same vicinity. The appellate court ruled the prosecution cannot use this as evidence on retrial. It would be different if Durando could pinpoint the exact location of their cellphones. A general vicinity is not enough evidence to convict someone of a crime.

Point 4: Failure to instruct the jury on accomplice liability for the aggravated assault charges requires reversal.

Accomplice liability means the court could find a person criminally liable for acts committed by a different person. Like in this case, all three men were accomplices to each other’s actions because they assisted one another commit the robbery. The trial court failed to mention to the jury on accomplice liability about lesser charges. The level of participation in a crime committed could lessen or strengthen a conviction. In this case, that option was not given. For that reason, this issue can be readdressed in a retrial where the jury will be properly informed. As a result, the charges of aggravated assault will be reversed and retried.

Point 5&6: Defendants sentence is manifestly excessive, and the trial judge erred by refusing to dismiss the courts changing possession of a firearm for an unlawful purpose and aggregated assault by pointing a firearm.

The appellate court already addressed the changing of charges regarding possession of a firearm for an unlawful purpose and aggravated assault by pointing a firearm above.  Since the appellate court remands retrial. Therefore, further proceedings including sentencing will be addressed at the retrial.



Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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