On appeal from the Superior Court of New Jersey, Law Division, Union County, 02-04-0502-I.
Before Judges Ciancia, Alley and R.B. Coleman.
The opinion of the court was delivered by: Alley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant was charged in a Union County indictment with aggravated assault, second-degree, N.J.S.A. 2C:12-1(b)(1) (Count One); carjacking, first-degree, N.J.S.A. 2C:15-2 (Count Two); robbery, first-degree N.J.S.A. 2C:15-1 (Count Three); and theft, third-degree, N.J.S.A. 2C:20-3 (Count Four). The case arose out of an incident on December 2, 2001, which allegedly started at the North Brunswick home of the parents of defendant's girlfriend. An argument escalated to an encounter between defendant and the girlfriend's father, Bruce Walters, in which the latter was injured. Hearing sirens apparently heralding the approach of police officers, defendant fled from the scene and then, after having obtained a ride from a limousine service in a vehicle driven by Jessie Edwards, he allegedly put Edwards in fear of injury while Edwards was driving. Edwards fled from the car and defendant drove off with it. The property that was the subject of the alleged robbery included not only the car but also other property that Edwards left in the car when he fled such as a small television, $100 in cash, and a briefcase. Defendant, it was further asserted, not only thereupon drove to Newark and bought drugs, he kept the car for about a day during which time he made a couple of hundred dollars transporting fares.
In a jury trial, defendant was found guilty of first-degree carjacking (Count Two) and third-degree theft (Count Four). He was found guilty on Count Three of second-degree robbery as a lesser-included offense of first-degree robbery, the jury having acquitted him of the first-degree charge because it determined that he had not been armed and did not use or threaten the immediate use of a deadly weapon. Defendant was also acquitted of second-degree aggravated assault as charged in Count One and convicted of the lesser-included offense of third-degree aggravated assault.
The trial judge sentenced defendant to four years incarceration on the Count One aggravated assault conviction and a concurrent twenty-year term of incarceration for the carjacking conviction on Count Two, subject to an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(d)(10). Counts Three and Four were merged into Count Two and appropriate fines and assessments were imposed.
On appeal, defendant contends as follows:
THE TRIAL COURT'S CHARGE TO THE JURY ON CARJACKING, WHICH INCLUDED A THEORY OF THE CASE NOT CHARGED IN THE INDICTMENT, VIOLATED MR. BERARDI'S CONSTITUTIONAL RIGHT TO INDICTMENT AND DUE PROCESS OF LAW. N.J. CONST. (1947), ART. I, PAR. 8; U.S. CONST., AMEND. V. (Partially Raised Below)
GIVEN THE CIRCUMSTANCES OF THIS OFFENSE, INCLUDING THE FACT THAT IT STARTED AS A DOMESTIC SQUABBLE, AND THAT DEFENDANT WAS HOMELESS AND ADDICTED TO DRUGS AT THE TIME, A TWENTY-YEAR TERM OF INCARCERATION, SUBJECT TO THE 85 PERCENT PAROLE PROVISION OF NERA, IS MANIFESTLY EXCESSIVE.
We first address defendant's contention that his conviction should be reversed because he was indicted for one type of carjacking and yet the judge charged and submitted to the jury two types of carjacking. The carjacking statute, which is set forth in N.J.S.A. 2C:15-2(a), has four subparts, numbered (1) through (4), and the crime of carjacking consists of any one of those four categories: The statute defines carjacking as follows:
A person is guilty of carjacking if in the course of committing an unlawful taking of a motor vehicle, as defined in N.J.S. 39:1-1, or in an attempt to commit ...