NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5556-17T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY J. HERBERT, Defendant-Appellant. ___________________________ Argued October 28, 2020 – Decided December 18, 2020 Before Judges Sumners and Geiger. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 15-01- 0065. Margaret McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Margaret McLane, of counsel and on the briefs). Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney; Meredith L. Balo, of counsel and on the brief). PER CURIAM Defendant Gregory J. Herbert appeals an October 27, 2016 order that granted the State's motion to admit his custodial statement to police in evidence at trial, and an October 3, 2017 judgment of conviction and sentence for conspiracy to commit first-degree robbery, third-degree possession of a weapon for an unlawful purpose, and the lesser-included offenses of fourth- degree aggravated assault by pointing a firearm and disorderly persons theft. We reverse defendant's convictions and remand for a pretrial hearing and retrial. We discern the following facts from the evidence presented at the joint trial of Herbert and co-defendant Kadeem I. Charles. 1 Herbert, Charles, and Michael Onyeagoro met at Charles's house for a party on December 19, 2013. Onyeagoro testified at trial that the trio left Charles's shortly after midnight to "discuss[] locations or persons that [they could] rob" and eventually decided to rob a gas station. 2 1 In our separate opinion in the companion appeal filed by Charles, we reversed Charles's convictions and remanded for a N.J.R.E. 104 hearing and retrial. State v. Charles, No. A-1136-17 (App. Div. Dec. 18, 2020). 2 Onyeagoro pled guilty to second-degree conspiracy and turned State's witness. A-5556-17T4 2 The three went forward with the plan. At approximately 2:30 a.m., Onyeagoro distracted the gas station attendant by driving into the gas station and asking for gas. As the attendant pumped gas, Charles pointed a BB gun at him while Herbert stole computer equipment. The trio fled the scene. Hillside Police Department received a "holdup alarm" from the BP gas station on Route 22 at 2:30 a.m. Police found Onyeagoro waiting for Herbert and Charles in his car nearby, which matched the description given by the gas station attendant. They observed a knife under the seat of the car and arrested Onyeagoro for possession of a weapon. Information obtained from Onyeagoro led to the arrests of Charles in July 2014 and Herbert in August 2014. Police searched Charles's home in Irvington and seized two BB guns, a ski mask, a knife, clothing, and gloves. Following ...
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