On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. 00-10-0860.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Sabatino and Lyons.
Defendant was convicted of second degree conspiracy to commit burglary, third degree aggravated assault, and two counts of third degree criminal restraint.*fn1 On this appeal he argues:
I. THE CONVICTIONS IN THE CASE BEFORE THE COURT MUST BE REVERSED BECAUSE THE JURY WAS MISINFORMED, ONCE AGAIN, ON THE CONCEPTS OF CONSPIRACY AND ACCOMPLICE LIABILITY, WHICH ERROR LED THE JURY TO HOLD DEFENDANT ACCOUNTABLE FOR ALL OF THE CONDUCT OF DANIEL KETTLE ONCE IT FOUND THE EXISTENCE OF A CONSPIRACY.
II. THE GUILTY VERDICT AGAINST PAUL KUCHERA WAS AGAINST THE WEIGHT OF THE EVIDENCE AND SHOULD BE REVERSED.
III. SINCE THE STATE FAILED TO PROVE EACH ELEMENT OF THE CRIME OF CRIMINAL RESTRAINT, THE GUILTY VERDICTS FOR THESE OFFENSES SIMPLY CANNOT STAND.
IV. PAUL KUCHERA WAS DEPRIVED OF A CONSTITUTIONALLY FAIR TRIAL AS A RESULT OF THE FACT THAT THE ENTIRETY OF THE EVIDENCE AGAINST HIM CONSISTED OF TESTIMONY SUPPLIED BY AN ALLEGED COCONSPIRATOR WHO PLEADED GUILTY AND TESTIFIED AGAINST HIM IN PRISON ATTIRE AND LEG SHACKLES IN THE ABSENCE OF BOTH A SECURITY HEARING AND AN APPROPRIATE JURY INSTRUCTION ON THE ISSUE.
V. THE SENTENCE IMPOSED ON DEFENDANT, PAUL KUCHERA, IS ILLEGAL AND EXCESSIVE. A. The Trial Court Erred in Failing to Merge the Conspiracy Count into the Substantive Crimes.
B. The Trial Court Erred in Imposing Consecutive Sentences Under the Circumstances.
VI. PAUL KUCHERA'S CONVICTION MUST BE REVERSED DUE TO PROSECUTORIAL MISCONDUCT.
We find that these contentions, except as to merger, are without merit and warrant only the limited discussion that follows. R. 2:11-3(e)(2).
We affirm the convictions for conspiracy and the criminal restraint of one of the victims, and we merge the remaining convictions into the conspiracy conviction.
Defendant was charged in a Burlington County indictment with second degree conspiracy, in violation of N.J.S.A. 2C:5-2 (count one); second degree burglary, in violation of N.J.S.A. 2C:18-2(a)(1) (count two); first degree robbery, in violation of N.J.S.A. 2C:15-1(a)(1) (count three); two counts of first degree kidnapping, in violation of N.J.S.A. 2C:13-1(b)(2) (counts four and nine); second degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1) (count five); third degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(2) (count six); two counts of fourth degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(4) (counts seven and ten); third degree terroristic threats (threat to kill), in violation of N.J.S.A. 2C:12-3(b) (counts eight and eleven); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a) (count twelve), unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b) (count thirteen); and possession of a firearm by convicted persons, in violation of N.J.S.A. 2C:39-7(b) (count fourteen). The conspiracy count, count one, alleged:
ON OR ABOUT BETWEEN December 26, 1999 & December 31, 1999 IN Mount Laurel Twp. IN BURLINGTON COUNTY, AND WITHIN THE JURISDICTION OF THIS COURT, PAUL J. KUCHERA WITH THE PURPOSE OF PROMOTING OR FACILITATING A CRIME, DID CONSPIRE WITH DANIEL F. KETTLE TO COMMIT THE CRIMES OF ROBBERY IN THE FIRST DEGREE AND/OR AGGRAVATED ASSAULT IN THE SECOND DEGREE AND/OR BURGLARY IN THE SECOND DEGREE AND/OR POSSESSION OF A WEAPON FOR UNLAWFUL PURPOSE IN THE SECOND DEGREE, IN VIOLATION OF N.J.S. 2C:15-1a(1), 2C:12-1b(1), 2C:18-2a(1) AND 2C:39-4a; CONTRARY TO THE PROVISIONS OF N.J.S. 2C:5-2, AND AGAINST THE PEACE OF THIS STATE, THE GOVERNMENT AND DIGNITY OF THE SAME.
At defendant's first trial, he was convicted of second degree conspiracy to commit burglary and aggravated assault,*fn2 as alleged in count one, second degree kidnapping as a lesser included offense on counts four and nine, and second degree aggravated assault as alleged in count five. On December 19, 2003, we reversed the convictions and remanded for a new trial (A-5723-01T2).
On the retrial, defendant was found guilty of second degree conspiracy to commit burglary in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2(a)(1) (count one), two counts of criminal restraint, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:13-2 (counts four and nine), and third degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1) (count five). The criminal restraints were presented as lesser included offenses to the kidnappings for which defendant was convicted at the first trial. Counts four and five referred to victim Robert Lesino ("Lesino"), and count nine referred to victim Joanne Cooper ("Cooper").
The verdict sheet on the charges resulting in convictions read as follows:*fn3
1. On the charge that defendant Paul Kuchera conspired with Daniel Kettle to commit an unlawful entry into the residence of Mr. Lesino with purpose to inflict or threaten bodily injury (i.e. a burglary) our verdict is:
If you answered Guilty to Question #1, please answer the following question and then proceed to question #2.
If you answered Not Guilty to Question #1, please proceed directly to question #2.
Did the defendant Paul Kuchera, or an accomplice or co-conspirator for whom Mr. Kuchera was legally accountable, use a deadly weapon, or threaten the immediate use of a deadly weapon?
4. The defendant Paul Kuchera is charged as an accomplice and/or co-conspirator with the Aggravated Assault- attempting to cause [or causing] significant bodily injury to Mr. Lesino- our verdict is: Not Guilty: ____
7. The defendant Paul Kuchera is charged as an accomplice and/or a co-conspirator with the unlawful criminal restraint and exposing Robert Lesino to the risk of serious bodily injury - our verdict is:
10. The defendant Paul Kuchera is charged as an accomplice and/or a co-conspirator with the unlawful criminal restraint of Joanne Cooper by exposing her to the risk of serious bodily [injury]- our verdict is:
As can be seen from the verdict sheet, the substantive charges were presented to the jury on theories of accomplice and conspiratorial liability.*fn4 See N.J.S.A. 2C:1-8(d)(2); N.J.S.A. 2C:2-6(b), (c). Defendant was not present at the scene of the crimes.
Defendant was sentenced to an aggregate term of fifteen years. The sentence on count one (conspiracy to commit burglary) was eight years with 85 percent parole ineligibility under the No Early Release Act (NERA) to be served concurrently with a four-year sentence on count five (aggravated assault of Lesino). On count four (criminal restraint of Lesino), defendant was sentenced to four years imprisonment to be served consecutively with his sentences for counts one, five, and nine. On count nine (criminal restraint of Cooper), defendant was sentenced to three years imprisonment, to be served consecutively to the other sentences. The court also instructed that "defendant shall not, if practicable, be ...