On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-10-1325-I.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2007
Before Judges S.L. Reisner, Gilroy and Baxter.
Defendant appeals from her conviction, following a jury trial, for second-degree conspiracy to commit both second-degree robbery and first-degree bias intimidation based on the victim's handicap. N.J.S.A. 2C:5-2.*fn1 She also appeals from the sentence imposed.
We affirm defendant's conviction for conspiracy to commit robbery and affirm the sentence of three years, subject to NERA, imposed for that offense. We reverse defendant's conspiracy conviction insofar as it was premised on bias intimidation as a predicate offense, because the trial judge incorrectly charged the jury on the definition of "handicap." We conclude that for purposes of the bias intimidation statute, N.J.S.A. 2C:16-1, the term "handicap" should be defined as it is in the Law Against Discrimination, N.J.S.A. 10:5-5q.
We begin by reviewing the pertinent facts as they bear on the significance of the jury instruction. The events that gave rise to the indictment occurred on July 10, 2003.
According to Patrick Murray's trial testimony, he was employed as a shopping cart retriever at the Pathmark store. He explained that in July 2003 he was temporarily living with defendant's husband, Douglas Dixon (Douglas) and Douglas' five year old daughter. He was paying Douglas $70 a week to stay in a curtained-off portion of the living room. The remaining portion of the rent was paid by "Section Eight;" Murray's $70 represented the "deductible" or Douglas' share of the rent. This arrangement went on for several months. Murray believed that Douglas and defendant were separated at the time, but defendant came to the apartment from time to time to visit their daughter. According to Murray, at some point defendant had Douglas arrested for failure to pay child support. After Douglas went to jail, Murray paid his share of the rent directly to the landlord.
Murray testified that at some point after Douglas went to jail, Douglas' nephew Shawn Hodge came to the apartment at night, woke Murray up, and told him "You owe my uncle $280." Murray insisted that he did not owe the money, that it had been paid. Hodges responded that Murray would have to leave the apartment. Accordingly, Murray moved out and took up residence in the Pathmark employee lounge. On the following Thursday, Murray received his paycheck of between $325 and $350 and cashed it in the Pathmark store. While he was outside "pushing carts," defendant, who was accompanied by her small child and two large men, approached Murray and said that he owed her husband $280. Murray tried to explain his arrangement with Douglas and said "As far as I'm concerned your husband and I are even." When one of defendant's companions tried to hit Murray, defendant said "No. Don't hit him now."
Murray went into the store and up to the employee lounge. The two men appeared a few minutes later and told him to follow them into the bathroom or they would "F" him up. The men pinned Murray against a couch, but he was able to break away and lock himself in a bathroom stall. The two men started banging on the stall door and demanding "the money." According to Murray, he had epilepsy and began to be afraid he would have a seizure. To get the men to go away, he took some bills from his wallet and slid the bills through a crack in the stall door. He did not give the men all of his money; he did not know how much he gave them. The men then left the bathroom and defendant followed them out and down the stairs. He did not see defendant in the store. On cross-examination, Murray admitted that after he gave the men the money, Hodge told him that "now that everything is even you can move back in if you want. I'll even give you the key." Murray agreed that the money the men were trying to get from him was "the last four months of the deductible," which was $280. However, Murray declined the offer to move back into the apartment.
According to witness Brandon Raver, defendant asked Raver and his friend Abdella to give her and Shawn Hodge a ride to the local Pathmark store. According to Raver, outside the store he saw Hodge and defendant approach Patrick Murray, who worked at Pathmark. He heard Murray protesting that he did not owe defendant and Hodge any money, and heard defendant tell Hodge "Don't hit him now." Murray went into the store with defendant and Hodge following him.
After a few minutes, Raver went into the store to find defendant and Hodge. He found Hodge and Murray in the bathroom and saw Murray giving Hodge some money. On cross-examination, Raver admitted he heard Murray say "Now that you have my money we're even." One of the other men responded "[y]es, we're even" and told Murray that he could now move back into Douglas Dixon's home. Raver, Hodge and defendant then returned to the car, and Raver heard defendant say "[t]hat was easy."
Beverley Robinson, a Pathmark employee, witnessed the confrontation between Murray and two other people outside the store. She heard the woman tell Murray that he owed her money and that "We will be back later for our money." According to Robinson, one of the men with the woman was "going to come after Patrick ready to hit him", but the woman said "Don't hit him. Don't hit him." Robinson saw Murray walk away to continue putting away the shopping carts, which was his job, and she then went back into the store to resume her own work. Robinson was unable to identify defendant as the woman she saw.
Gloria Wisnack, another Pathmark employee, testified that Murray worked as a cart person. Wisnack called Murray "a special person," because "I think he has some medical problems." She testified that she saw two tall black men enter the men's bathroom on the second floor of the store. Although she was sitting nearby, she did not hear any banging or unusual noise coming from the bathroom. After the two men emerged from the bathroom about ten minutes later, Murray came out looking upset. Based on what he told her, she went looking for the two men but did not find them in the store.
According to the investigating police officer, Murray told him that two males approached him in the bathroom and took money from him. Murray also alleged that defendant was present with the men upstairs in the Pathmark. The officer testified that Murray "suffers from epilepsy. He is a little difficult. I would say slow. He shows some kind of handicap." After police arrested defendant, she told them that Murray lived in her exhusband's apartment. She said Murray was "a little slow" but she knew he could read because he used to read to her daughter. Defendant admitted going to Pathmark to buy groceries with Raver, Hodge and a third man whom she did not know, who was driving the car. She contended to the police that she had no idea that the two men were going to try to rob Murray and that she was not involved in that incident. The officer also admitted that defendant and Murray both told him that defendant's five year old child was with her at the Pathmark.
At trial, defendant testified that she and Douglas Dixon had joint custody of their daughter until he went to jail. She testified that on July 10, 2003, Hodges came to her house and asked her to help him cash Douglas' social security checks.*fn2 She declined, but asked them for a ride to her husband's house to pick up baby clothes. She testified that she, her daughter, Raver, Hodge, and another man, drove over to Douglas' apartment to pick up some of their daughter's clothes. On the way, they stopped at Pathmark and she bought her daughter some pudding. She denied speaking to Murray at all or having any involvement in the activities of the men who took money from ...