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State v. Rosebrough

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 6, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ASSAMAD ROSEBROUGH, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-05-00491.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 8, 2007

Before Judges R. B. Coleman and Gilroy.

Defendant Assamad Rosebrough, along with co-defendant Ronald Williams, was charged in Union County Indictment No. 04-05-00491 with the following crimes: first degree robbery, N.J.S.A. 2C:15-1 (count one); second degree robbery, N.J.S.A. 2C:15-1 (count two); third degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); third degree possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); third degree receiving stolen property/auto, N.J.S.A. 2C:20-7 (count six); and third degree receiving stolen property/handgun, N.J.S.A. 2C:20-7 (count seven). Defendant was additionally charged with fourth degree resisting arrest, N.J.S.A. 2C:29-2(a) (count eight).

Following a trial by jury in June 2005, defendant was found guilty of first degree robbery (count one); third degree aggravated assault (count three); second degree possession of a weapon for an unlawful purpose (count four); fourth degree joyriding as a lesser-included offense of count six; and fourth degree resisting arrest (count eight). Defendant was acquitted of all remaining charges.

On July 15, 2005, defendant appeared for sentencing. After weighing the aggravating and mitigating factors, the court merged counts two, three and four with count one and sentenced defendant to a term of fifteen years subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA). The judge then imposed a consecutive sentence of nine months on count seven and another consecutive term of nine months on count eight.

Defendant raises the following issues on appeal:

POINT I: THE COURT'S ACCOMPLICE LIABILITY INSTRUCTIONS DENIED THE DEFENDANT A FAIR TRIAL BY FAILING TO INFORM THE JURY THAT DEFENDANT, AS AN ACCOMPLICE, COULD BE GUILTY OF LESSER INCLUDED OFFENSES (Partially Raised Below).

POINT II: THE SENTENCES ON COUNTS SEVEN AND EIGHT SHOULD HAVE BEEN IMPOSED CONCURRENTLY TO EACH OTHER AND TO COUNT ONE.

After careful consideration of defendant's arguments in light of the facts and applicable law, we affirm defendant's convictions and sentence.

On September 3, 2003, at about 10:00 p.m., Orhan Simsek, an attendant at Brother's Amoco Gas Station on Route 22 West in Union, was in the attendant's booth. Simsek was approached by two men, later identified as defendant and Williams, who entered his booth and demanded money. Williams knocked Simsek to the ground with a blow from a handgun. Simsek gave the two men approximately $300 from the day's proceeds. With money in hand, the men left.

As off-duty Hillside Police Officer, Brian Wilson, was driving past, he noticed a black male walking towards the attendant's booth, pulling a ski mask over his face. Wilson pulled into an adjoining parking lot so that he could continue to observe the station and notified the Hillside Police of his observations. Defendant and Williams exited to the lot from which Wilson was watching and got into a gray Nissan Altima. The Altima, with Wilson following, pulled onto Route 22 and made a U-turn and headed east. Wilson continued to follow the vehicle until a marked unit from the Hillside Police arrived. Once the Altima entered onto Long Avenue, the police attempted to effectuate a stop, but a high-speed chase resulted that ended at a dead-end street. Defendant then abandoned the vehicle and attempted to flee, but he was apprehended by a Union Police Officer and arrested.

Defendant first argues that the court did not adequately convey to the jury that it could find him guilty of a lesser crime than his co-defendant. We disagree.

Despite defendant's contentions to the contrary, this issue was not raised below and, thus, must be analyzed under the plain error standard as counsel failed to object to either the original charge or the subsequent supplemental charge. R. 1:7-2. Under the plain error standard, the defendant must demonstrate "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). When charging a jury, a court must "'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense'" when an alleged accomplice is charged with a different degree of offense than the principal or when lesser-included charges are submitted to the jury. State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)).

Here, the trial judge instructed the jury, in pertinent part, as follows:

This responsibility as an accomplice may be equal and the same as he who actually committed the crimes or there may be responsibilities in different degrees, depending on the circumstances as you find them to be.

When reviewing the judge's charge as a whole, it is clear that the above excerpt was just one of several occasions on which the judge instructed the jury that they must weigh the guilt of defendant and Williams separately. Following a question from the jury, the court directed the jury that in order to find defendant guilty "as an accomplice to the specific crimes charged, you must find that the defendant had the purpose to participate in that particular crime" and that the "State must prove that it was defendant's conscious object that the specific conduct charged be committed." Consequently, we find no error in the judge's instructions to the jury. Absent error, it is clear that the jury charges lacked the "clear capacity to bring about an unjust result."

Defendant next alleges that the court erred by imposing consecutive sentences for counts seven and eight. We disagree.

When dealing with whether or not to impose concurrent versus consecutive sentences, a court must conduct the analysis articulated in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). Here, the crimes of joyriding and resisting arrest are separate and distinct from the crime of robbery. Furthermore, we reject defendant's contentions that these are victimless crimes. In the crime of joyriding, the owner of the vehicle is clearly a victim and "any flight from police detention is fraught with the potential for violence" against the suspect, the police and innocent bystanders. State v. Crawley, 187 N.J. 440, 461 n. 7, cert. denied, ___ U.S. ____, 127 S.Ct. 740, 166 L.Ed. 2d 563 (2006). Additionally, plaintiff was convicted of multiple crimes and is not entitled to any "free crimes." Yarbough, supra, 100 N.J. at 643.

The court's decision to impose consecutive sentences does not violate Yarbough and is supported by substantial, credible evidence in the record. State v Locurto, 157 N.J. 463, 471 (1999).

Affirmed.

20070806

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