On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 2847-09-00.
Before Judges Skillman, Cuff and Lefelt
The opinion of the court was delivered by: Skillman, P.J.A.D
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal requires us to consider the correct form of jury instruction when a defendant is charged with armed robbery based on simulated possession of a deadly weapon.
A jury found defendant guilty of third-degree burglary, in violation of N.J.S.A. 2C:18-2; third-degree theft, in violation of N.J.S.A. 2C:20-3; armed robbery, in violation of N.J.S.A. 2C:15-1; and third-degree escape, in violation of N.J.S.A. 2C:29-5a. The jury also acquitted defendant of a charge of fourth-degree aggravated assault, and the trial court dismissed a second count of escape. The court sentenced defendant to an extended fifty-year term of imprisonment, with fifteen years of parole ineligibility, for the armed robbery, and concurrent five-year terms, with two-and-a-half years of parole ineligibility, for the burglary and the escape. The court merged defendant's theft conviction into his conviction for armed robbery.
Defendant's convictions arose out of a burglary of an apartment in the Regency Court Apartments on the White Horse Pike in the Borough of Magnolia. Around 2:30 p.m. on January 11, 2000, one of the tenants, Lamont Lundy, observed a man later identified as defendant carrying numerous items of clothing from the area of the apartment of the victim, Zachary Paige, through a courtyard in the direction of a parking lot. When he made these observations, Lundy assumed defendant was a tenant who was moving out of his apartment.
Around the same time, another tenant, Joseph Cross, who lived next door to Paige, saw a man he later identified as defendant carrying a big box covered by a blanket out of Paige's apartment. Cross asked defendant whether he knew Paige. Defendant said he did, and that he had just bought his projection TV "for five bucks." After defendant declined his offer to help him carry the TV, Cross went back into his apartment.
Around 3:15 p.m., Paige returned home from work and met his friend, Walter Domanski, Jr., who worked in the apartment complex and was the manager's son. As they approached Paige's apartment, they noticed that the hinges on the front door were torn off. When Paige entered the apartment, he discovered that his TV, numerous items of clothing, cellular telephones, gold chains, cash and other personal property were missing. Paige immediately reported the crime to the Magnolia Police Department. While Paige was calling the police, Domanski went to tell his father, Walter Domanski, Sr., what had happened. Paige and the two Domanskis then began looking for the perpetrator. The three men encountered Lundy, who told them he had seen a man carrying clothing from Paige's apartment.
Shortly thereafter, the men saw defendant in the woods adjoining the apartment complex, drinking a beer and looking at them. The men approached defendant, asked him who he was and what he was doing there. Defendant responded, "I'm just drinking a beer. I'm minding my own business." Paige and Domanski, Jr. then noticed that defendant was wearing Paige's Reebok jacket, leading Paige to exclaim: "Oh my god, that is my jacket!" When defendant heard this, he threw his beer can at the men and attempted to punch Paige. Domanski, Jr. stepped in front of Paige, got hit with the punch, then grabbed defendant, placed him in a headlock, and wrestled him to the ground.
According to Paige, after Domanski, Jr. wrestled defendant to the ground, defendant said: "You don't know who I am. You don't know my background. Um, I got a gun on me. I'll shoot you. I'll kill you." At this point, defendant "reached behind his back like he was about to do something, as far as reach for a gun or a knife, whatever the case may be and [Domanski, Sr.] stopped him." However, defendant was not in fact armed, and Domanski, Jr. kept him on the ground until the police arrived and placed him under arrest.
The police and the group of men subsequently searched the area around the apartment complex for the items taken from Paige's apartment. They discovered his projection TV hidden behind a dumpster near the parking lot. However, the only other item recovered was the Reebok jacket worn by defendant.
The police brought defendant to the police station and handcuffed him to a bench. However, a short while later, they heard the back door slam shut, and when they looked at the bench, they saw that defendant had escaped from the handcuffs and left the police station. This conduct was the basis of defendant's conviction for escape, which is not challenged in this appeal. Defendant was arrested sometime later in Virginia.
On appeal, defendant argues that the trial court erred in refusing to give an instruction to the jury concerning cross- racial identification, failing to instruct the jury concerning simple assault and terroristic threats as lesser included offenses of robbery, and failing to adequately explain to the jury that to convict him of "armed" robbery, it had to find that he "simulated" possession of a weapon rather than merely verbally threatening use of a weapon. In addition, defendant has submitted a pro se supplemental brief which argues that the trial court erred in admitting Paige's Reebok jacket into evidence because the State did not establish the chain of custody of this evidence and that the evidence was insufficient to support his conviction for armed robbery. The State has cross-appealed on the ground that the trial court failed to impose the sentence of life imprisonment without parole mandated by N.J.S.A. 2C:43-7.1, sometimes referred to as the "Three Strikes and You're In" law. State v. Oliver, 316 N.J. Super. 592, 594 n.1 (App. Div. 1998), aff'd, 162 N.J. 580 (2000).
We conclude that the arguments set forth in defendant's supplemental pro se brief are clearly without merit and do not require discussion. R. 2:11-3(e)(2). We also conclude that the trial court did not abuse its discretion in refusing to give a cross-racial identification instruction. However, the court erred in failing to instruct the jury regarding simple assault and terroristic threats as lesser included offenses of robbery and its instruction regarding armed robbery did not adequately explain the law regarding simulated possession of a weapon. The court's failure to submit to the jury the lesser included offenses of robbery and the inadequacy of its instruction regarding armed robbery do not affect defendant's convictions for burglary and escape. Therefore, we affirm defendant's convictions for ...