On appeal from Superior Court, Law Division, Union County.
Michels and Muir, Jr. The opinion of the court was delivered by Muir, Jr., J.A.D.
[232 NJSuper Page 433] This criminal case had its genesis when D.D., an infant, and Dennis Sutton stepped from a car driven by defendant and, at the point of a simulated handgun, took a large portable radio from a young man. Defendant drove D.D. and Sutton from the scene. During his jury trial on first degree robbery and terroristic threat charges, defendant and Sutton testified defendant did not know the two co-defendants intended to rob the victim when defendant stopped the car to let them out. Based on that purported lack of knowledge, and defendant's testimony he drove his co-defendants from the scene out of fear, defense counsel requested the trial judge charge the crime of hindering apprehension as a lesser included offense of robbery, or as an alternative to robbery. The trial judge denied the request.
The trial judge's instructions to the jury did include accomplice liability. The jury convicted defendant of both charges. The trial judge sentenced defendant to two concurrent indeterminate terms with the term on the robbery conviction not to exceed ten years and the term on the other conviction not to exceed three years. The trial judge also imposed an appropriate Violent Crimes Compensation Board penalty.
Defendant appeals, contending:
POINT I THE TRIAL COURT ERRONEOUSLY FAILED TO CHARGE THE JURY THAT DEFENDANT'S CONDUCT MAY HAVE CONSTITUTED HINDERING APPREHENSION AND NOT FIRST DEGREE ROBBERY AND TERRORISTIC THREATS AND THAT SUCH A FINDING REQUIRED THE DEFENDANT'S ACQUITTAL EVEN THOUGH DEFENSE COUNSEL [ sic ] (PARTIALLY RAISED THE ISSUE BELOW).
POINT II THE TRIAL COURT ALTERNATIVELY ERRED IN REFUSING DEFENSE COUNSEL'S REQUEST TO CHARGE THE JURY THAT DEFENDANT'S CONDUCT MAY HAVE CONSTITUTED THE LESSER INCLUDED OFFENSE OF HINDERING APPREHENSION RATHER THAN FIRST DEGREE ROBBERY AND TERRORISTIC THREATS.
POINT III THE TRIAL COURT ERRONEOUSLY REFUSED TO CHARGE THE JURY THAT DEFENDANT'S CONVICTION AS AN ACCOMPLICE REQUIRED THE STATE TO PROVE DEFENDANT'S GUILT AS AN ACCOMPLICE BEYOND A REASONABLE DOUBT.
POINT IV THE TRIAL COURT'S REFUSAL TO PERMIT CROSS EXAMINATION OF DENNIS SUTTON CONCERNING THE DETAILS OF HIS PLEA BARGAIN WITH THE STATE VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES AGAINST HIM AND REQUIRES THE REVERSAL OF HIS CONVICTION.
POINT V THE TRIAL COURT'S ERRONEOUS REFUSAL TO PERMIT THE DEFENDANT TO PRESENT TESTIMONY CONCERNING HIS STATE OF MIND AT THE APPROXIMATE TIME OF THE ROBBERY PREJUDICED THE DEFENDANT AND VIOLATED HIS RIGHT TO DUE PROCESS OF LAW.
We affirm. In doing so, we conclude that only defendant's first two contentions require comment, since the remainder are clearly without merit. See R. 2:11-3(e)(2).
Despite defendant's contentions to the contrary, the only issue here is whether the crime of hindering apprehension is a lesser included offense of robbery. This is so because the indictment setting forth the charges did not list hindering ...