On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication April 23, 1996. As Corrected April 23, 1996.
Before Judges Baime, Villanueva, and Kimmelman. The opinion of the court was delivered by Baime, J.A.D.
The opinion of the court was delivered by: Baime
The opinion of the court was delivered by BAIME, J.A.D.
Defendant was charged with two counts of first degree "carjacking" (N.J.S.A. 2C:15-2a(1)), third degree possession of a handgun without a permit (N.J.S.A. 2C:39-5b), two counts of second degree possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a), and third degree theft by receiving stolen property (N.J.S.A. 2C:20-7). A jury found defendant guilty of one count of carjacking, the lesser-included offense of third degree theft (N.J.S.A. 2C:20-3) on the other carjacking count, and theft by receiving stolen property. Defendant was acquitted of the remaining charges. The trial court merged the convictions and sentenced defendant to a custodial term of ten years with a five year parole disqualifier on the carjacking count.
On appeal, defendant argues (1) his motion for a judgment of acquittal was improperly denied, (2) the trial court committed plain error in its instructions on carjacking, and (3) the sentence imposed was "cruel and unusual." For the reasons that follow, we affirm defendant's convictions and sentence.
On September 25, 1993, Jason Sinclair and William Wagner borrowed an automobile belonging to Sinclair's mother and drove to Newark to purchase cocaine. After buying the drugs, the two men drove away by a circuitous route in order to escape police detection. According to the State's evidence, at a stop sign defendant approached the passenger side of the automobile and put a gun to Wagner's head. Both Wagner and Sinclair were ordered to exit the vehicle. After relieving Wagner of some money and the cocaine he had just purchased, defendant ordered Sinclair to give him the keys to the car or he would shoot him. Ultimately, defendant obtained the keys and drove away. Defendant and Louise Jarrel, who was indicted only on the theft by receiving stolen property count, were arrested while seated in the stolen automobile several days later. Following the arrest, both Sinclair and Wagner positively identified defendant's photograph as that of their assailant. Shortly before trial, defendant telephoned Wagner and unsuccessfully attempted to stop him from testifying.
Defendant's version of the incident was markedly different. According to defendant, he assisted Sinclair and Wagner in purchasing drugs. When Wagner and Sinclair refused to give him his fair share of the drugs, defendant retaliated by locking them out of the car. More specifically, defendant testified that while he, Wagner and Sinclair stood beside the automobile, he pushed Wagner aside, jumped into the driver's seat, locked the passenger door and drove away. Defendant admitted that he kept the car for four days and changed the license plates.
We reject defendant's contention that the trial court erred by denying his motion for a judgment of acquittal respecting the count charging carjacking from Wagner. The applicable statute provides in relevant part:
A person is guilty of carjacking if in the course of committing an unlawful taking of a motor vehicle . . . or in an attempt to commit an unlawful taking of a motor vehicle he:
(1) inflicts bodily injury or uses force upon an occupant or person in possession or control of a motor vehicle . .
An act shall be deemed to be "in the course of committing an unlawful taking of a motor vehicle" if it occurs during an attempt to commit the unlawful taking of a motor vehicle or during an ...