Before Judges Petrella, Skillman and Steinberg.
The opinion of the court was delivered by: Petrella, P.j.a.d.
On appeal from Superior Court of New Jersey, Law Division, Somerset County.
A jury found defendant Dennis A. Garretson guilty of carjacking by the unlawful taking of a motor vehicle while putting the occupant in fear of immediate bodily injury. N.J.S.A. 2C:15-2a(2). The jury did not accept the alternate theory of carjacking by operating the vehicle with the occupant remaining in it. N.J.S.A. 2C:15-2a(4). The non-jury trial offenses of criminal mischief and reckless driving were disposed of by the trial Judge by findings of guilty on each charge. A charge of driving while his license was suspended was dismissed on the State's motion during trial. After the trial Judge granted the State's motion, he sentenced Garretson as a repetitive offender to an extended prison term of fifty years in prison, ten years without parole eligibility. In addition, the Judge imposed a $750 penalty and a driver's license suspension of two years *fn1 and noted same in the judgment of conviction for the carjacking offense.
On appeal, Garretson argues:
I. The court improperly refused to charge second degree robbery and theft from the person as lesser offenses of carjacking, mistakenly believing that lesser charges could not contain an element (theft) which was not required by the greater offense.
II. Because Mr. Garretson never threatened to use force against the occupant of the vehicle, the court abused its discretion in imposing an extended sentence.
III. The $750 penalty and two year driver's license suspension imposed under N.J.S.A. 2C:20-2.1a(2) must be vacated because the defendant was not convicted of motor vehicle theft or unlawful taking under Chapter 20.
The incident occurred at about 2:00 p.m. on July 29, 1995, in the parking lot of a convenience store in North Plainfield. A seventy-nine year old woman (the victim) was seated alone in the front passenger seat of her daughter's automobile while the daughter went to make a purchase. The victim testified that it was a hot day, but the windows were up, so that the air conditioner would keep the car cool. The motor was left running and the doors were unlocked.
While waiting for her daughter, the victim observed a man, later identified as Garretson, knock on the driver's side window and ask if she had change for a dollar. The victim said, and indicated, no. Garretson then opened the driver's side door, got into the driver's seat and put his hands on the wheel. The gearshift and the ignition key were both located on the right side of the steering column. The victim testified that Garretson moved his hand to the right side of the steering column to either put the car in gear or put his hand on the key. Garretson did not display any weapon or say anything further. Although the victim testified that Garretson did not touch her, a witness who was present in the parking lot testified that he observed the victim and Garretson engaged in some sort of shoving or pushing match while seated in the front seat.
The victim was afraid that Garretson was going to drive away so she told him she would not go with him and exited the vehicle. As she tried to get out of the car she fell to the ground, broke her hearing aid and sustained bruises on her back and shoulder.
A witness who was in the parking area assisted the victim to get up as she yelled that someone was stealing her car. The witness ran alongside the vehicle yelling for other cars not to let it through. He then got into his own car and drove to the police station.
Another driver in the area observed what had happened, called the police on his car phone and followed the vehicle being driven by Garretson. He observed it make a U-turn on a front lawn and heard a loud thud when the front left tire blew out. He then followed the vehicle to Seventh Street where the Plainfield police blocked its path and arrested Garretson. The police brought the victim to Seventh Street where she identified Garretson as the man who stole her daughter's vehicle.
At trial, Garretson did not dispute the facts presented on the State's case, but merely argued that those facts ...