On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Approved for Publication July 7, 1997.
Before Judges Havey and Brochin. The opinion of the court was delivered by Brochin, J.A.D.
The opinion of the court was delivered by: Brochin
The opinion of the court was delivered by
Defendant Steven Baker was convicted of committing first degree armed robbery (N.J.S.A. 2C:15-1) as an accomplice or aider and abettor (N.J.S.A. 2C:2-6) and of conspiracy (N.J.S.A. 2C:5-2) to commit armed robbery. The conviction for conspiracy was merged into the conviction for aiding and abetting armed robbery. Because this was defendant's second Graves Act (N.J.S.A. 2C:43-6c) conviction, he was sentenced to a mandatory extended term of fifty years' imprisonment with sixteen and two-thirds years' parole ineligibility.
Defendant was convicted of having participated in the armed robbery of a drug dealer. Defendant supplied the vehicle (variously described as a Jeep, a truck and a car) in which he drove himself and the three other perpetrators of the robbery to the scene of the crime. After the intended victim had been located, defendant parked his vehicle about a block away and waited for his passengers to commit the robbery and to return. In the course of the robbery, the victim was shot in the back. Defendant's cohorts came hurrying back to the vehicle and told him that the victim had been shot. Defendant drove them to the apartment building where he and one of his companions lived. Then, using another car that he owned, defendant drove his two other companions to their homes.
The only differences between the State's and defendant's version of the facts relate to what defendant knew and when he knew it. The State's evidence showed that he participated in the advance planning of the robbery and that he knew beforehand that one of his cohorts was carrying a handgun. Defendant and two of the others who had participated in and been convicted for the robbery testified that defendant thought he was driving his passengers to buy drugs, and that he did not learn about the gun, the robbery, and the shooting until after they had returned to his vehicle.
On appeal, defendant challenges the trial court's instructions to the jury on two grounds: because they failed to relate general principles of law to the facts of this case and because they permitted the jury to convict defendant even if his only participation in his passengers' activities was to drive the getaway car after learning of the robbery and shooting. Defendant also contends that the verdict was against the weight of the evidence; that a mistrial should have been granted because a State's witness mistakenly referred to him by his brother's first name and his brother was then a defendant in a notorious capital case; and that the sentencing Judge failed to consider appropriate aggravating and mitigating factors when he imposed the presumptive sentence of fifty years' imprisonment.
The only argument which warrants substantial Discussion is the contention that the charge, which was not objected to at trial, was plain error because it allowed the jury to convict on a finding that defendant was unaware of the gun or robbery until after the perpetrators returned to the car and that he then, as he admitted by his testimony, aided them in their escape. The other arguments are entirely without merit. R. 2:11-3(e)(2). We add only the following observations about those other arguments.
We agree that the instructions to the jury were phrased in abstract terms and the court did not explicitly relate them to the facts of the case. Making the charge concrete and specific in every case is certainly desirable. See State v. Concepcion, 111 N.J. 373, 379-80, 545 A.2d 119 (1988). If defendant had submitted a factually specific request to charge, that would undoubtedly have facilitated the court's preparing instructions of the sort that he now asserts should have been delivered. See R. 1:8-7. There is no indication in the record that such a request to charge was ever presented to the court. Moreover, this trial was short and the testimony was uncomplicated. Defendant's right to a fair trial was not prejudiced because the charge lacked concreteness.
The contention that the verdict was against the weight of the evidence is not properly before us on appeal because defendant did not move for a new trial on that ground. R. 2:10-1; State v. McNair, 60 N.J. 8, 9, 285 A.2d 553 (1972); State v. Johnson, 203 N.J. Super. 127, 133, 495 A.2d 1367 (App. Div.), certif. denied, 102 N.J. 312 (1985). Furthermore, the supporting evidence is more than ample.
Neither the denial of a mistrial because a witness referred to defendant a few times as "Scott Baker" rather than as "Steven Baker," nor imposition of the presumptive term of incarceration was an abuse of discretion.
The jury charge on conspiracy to commit armed robbery and accomplice liability for armed ...