On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Before Judges Pressler, Landau and Conley.
The opinion of the court was delivered by CONLEY, J.A.D.
Following a jury trial, defendant was convicted of first degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count one), and second degree kidnapping, contrary to N.J.S.A. 2C:13-1b (a lesser-included offense under count two). He was acquitted of third degree unlawful possession of a machine gun (count three) and possession of a machine gun for an unlawful purpose (count four). A custodial term of twenty years with a seven-year parole disqualifier was imposed on count one. A concurrent ten-year term was imposed on count two. In addition, a total $60 Violent Crimes Compensation Board penalty was also imposed.
The convictions arose from the robbery of Dicson Pena, a taxicab driver, on October 28, 1990. According to his testimony, presented to both the grand jury and the petit jury, Pena picked up four passengers on that date at about 10:00 p.m. at 52nd Street and Palisades Avenue in West New York, New Jersey. Defendant was one of the four, along with another male and two
females. The other male got in the front seat next to Pena and the other three were in the back seat; defendant was directly behind Pena. Pena drove them thirteen blocks to 39th Street and New York Avenue when the other male initially pulled out a knife, which he gave to one of the women in the back seat, and then pulled out a handgun. While being threatened with both weapons, Pena testified that he was robbed of his watch, jewelry and money. In addition to the knife and handgun, he also claimed that, at one point, he saw what looked like a machine gun in defendant's hand. After the four robbed Pena, defendant got into the driver's seat and drove the cab through the Lincoln Tunnel into New York City where Pena was pushed out of the cab at 165th Street and Broadway. The cab was abandoned a block away. Defendant was apprehended a few days later when Pena spotted him in West New York and alerted the police.
Defendant chose not to testify, but his girlfriend, Zulma Morales, one of the females involved, did. She admitted that Pena was robbed and that the cab was commandeered for a short time, but she was adamant that the only weapons involved were two six-inch butter knives. She also claimed that neither she nor defendant ever possessed the knives or any other weapons, that neither defendant nor she had any intent or knowledge of any plan to rob Pena when they got into the cab and that defendant had been forced by the other male to drive the cab.
Pursuant to special interrogatories submitted to the jury on count one, the jury found defendant guilty of robbery, that he was not armed with a machine gun, was hung on whether he was armed with a handgun, but did find he was armed with a knife during the course of the robbery. Thus, the conviction of the first degree robbery was based upon a jury finding that the weapon involved was a knife. It goes without saying the jury rejected Pena's observations of a machine gun and could not agree on the handgun testimony.
Because it is critical to the only issue of substance that defendant has raised, we set forth in some detail the circumstances
surrounding and leading up to the submission to the jury of the weapons special interrogatories. Although we have not been presented with the actual grand jury transcript, it is not disputed that the substance of Pena's trial testimony was presented to the grand jury, including his testimony as to the multiple weapons involved. The actual language of the armed robbery count, as returned by the grand jury, however, was that on October 28, 1990 defendant:
in the course of committing a theft, did threaten immediate bodily injury to Dicson Pena, and/or did purposely put Dicson Pena in fear of immediate bodily injury, while armed with and/or threatening the immediate use of a deadly weapon, to wit: a machine gun, contrary to the provisions of N.J.S.A. 2C:15-1. . . .
Count one, then, charges that defendant committed a robbery with a deadly weapon but specifies as the deadly weapon only the machine gun. The third and fourth counts, charging the weapons offenses and of which defendant was acquitted, also refer solely to the machine gun. We pause here, however, to note that defendant has not suggested or argued, that the grand jury was specifically requested, but declined, to return an armed robbery indictment based on the other weapons. See State v. LeFurge, 101 N.J. 404, 424, n.18 (1986) ("obviously, a trial court would not . . . charge [unindicted] conspiracy in a case in which the grand jury was asked to indict for conspiracy but declined to do so.").
During jury selection, the prosector moved, pursuant to R. 3:7-4, to "correct" or "reform" the description of weapons contained in count one to read "a machine gun and/or a pistol and/or a knife." In doing so, the prosecutor pointed out:
That information is contained in the police reports as reported to the police by the complaining witness in this matter and those weapons are referred to specifically within the grand jury testimony that was given on January 2nd of this year by the victim in this matter, and I have the grand jury minutes available for the Court to review that.
I would think that based on a review, Judge, of the grand jury minutes and the parameters of the rule, that the State's motion is merely to round out the description of the crime that Is alleged, more specifically the description of the
weapons used in the crime rather than alleging any new crime to have been committed because he is, in fact, indicted for the highest version. . . .
Defense counsel objected. He said:
the problem that I have with that in the indictment is that it's, if we had had that originally in the indictment, to comport, then I wouldn't have a problem with that because I think that then we could -- in terms of our defense that we could probably be able to look at those other aspects, and also as far as my concern is, the issue of accomplice liability would then come up because to me would have a proper basis for which to offer a plea, a counter-plea, counter-plea offer that would encompass a response from my client that would deal with the accomplice area.
As far as we can discern from the record, however, plea negotiations, which appear to have been on-going during this time frame, were not in any way impeded by the technical wording of the indictment, but rather by the State's unwillingness to consider a plea on other than a Graves Act offense. Given the State's early provision of discovery including the police reports referring to a knife and the provision of the grand jury minutes, it is evident that the State's position on plea bargaining was unaffected by the wording of the indictment.
In any event, the trial Judge denied the prosecutor's request to amend the indictment. The trial Judge specifically stated, however, that she would not restrict the evidence concerning the various weapons involved "if the testimony bears out any lesser included or alternative weapons . . . will so direct the jury with respect to lesser included at the time of the jury charge." The trial Judge specifically stated that if all three weapons were referred to in the evidence, the jury would be asked to return a verdict on armed robbery as to each separate weapon. Defense counsel raised no specific objection as to that procedure at that time and requested no limitations on the State's offer of evidence of defendant's use of a weapon other than a machine gun.
Nor did defendant object during trial to the testimony as to the pistol and knife. Moreover, not only did he extensively cross-examine as to that, but he also presented direct evidence of the existence of knives through his witness, Zulma Morales. And when, after presentation of the evidence and during Discussion of the charge, the trial Judge inquired as to whether the jury should
be requested to return a verdict, not only as to the machine gun but the pistol and knife as well, defense counsel again did not object. Indeed, when the trial Judge asked "Do you want to put on the verdict sheet then: Was a handgun used? Was a knife used? Was an automatic weapon used?", he replied: "I think you would have to; otherwise, I don't see how the Court would be guided." Later, in agreeing to the prosecutor's request for a charge on second degree robbery, defense counsel stated: "I would be of a mind to say that probably there would be a position for both, for there being armed robbery (a) with a knife, ...