On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-01-0132.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 18, 2007
Before Judges Fuentes and Chambers.
Defendant Kye Crosby was indicted by a Monmouth County grand jury and charged with first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4b; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree use of a juvenile to commit a crime, N.J.S.A. 2C:24-9a. A jury found defendant guilty of first-degree robbery, and acquitted him on the rest of the charges. The court sentenced defendant to a term of ten years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed the mandatory fines and penalties.
After reviewing the record before us, and in light of prevailing legal standards, we reverse and remand this matter for a new trial. We are satisfied that the trial court committed reversible error by: (1) failing to instruct the jury on accomplice liability; (2) excluding second-degree robbery as a lesser-included offense in the jury verdict sheet; and (3) failing to give the jury limiting instructions concerning the testimony of a juvenile witness called by the State.
Dahreo Ramkhalawan testified that on September 25, 2004, at approximately 11:00 p.m., he was assaulted and robbed by "two guys" who struck him in the back of the head; kicked, stomped and beat him, while he laid helpless on the ground. Ramkhalawan described his attackers as males: one African American and the other Caucasian. After the beating stopped, he "felt an object on [his] temple . . . [and] kind of . . . brushed it away." His assailants then told him that the "object" was a gun and demanded money from him. In direct response to the prosecutor's question, Ramkhalawan identified defendant as the person who put the gun to his temple.
Defendant's alleged accomplice, a juvenile identified as J.B., testified as a witness for the State. He was seventeen years old at the time of the robbery, and therefore subject to the jurisdiction of the Family Part. He was adjudicated delinquent after he pled guilty to one count of first-degree robbery.
J.B. testified at defendant's trial that, pursuant to his plea agreement with the State, he was sentenced to two years detention in a juvenile facility. The State also agreed to dismiss other unrelated charges and to recommend that he receive a one-year term for a separate third-degree offense, to be served concurrent with his two-year term.
J.B. gave the following account of the events involving the robbery:
[Defendant and I] were walking through the park and [defendant] asked me if I got his back. I said yes. So I walked a little faster. . . with him and then started running to get the stuff and then started running to get this guy, and started beating him up, pulled out a gun on him. The guy started waving at the gun, trying to grab the gun so I hit the guy, and I kicked him.
According to J.B., Ramkhalawan gave defendant a brown wallet and money consisting of currency in the amount of five dollars and an unknown amount of coins.
J.B. also identified defendant's cell phone and stated the phone number for the phone. He explained that defendant discovered that his phone was missing after the robbery and planned on having the phone turned off. He did not know what defendant did with the gun. On cross-examination, J.B. conceded that he had not discussed the robbery with defendant prior to its execution and that he "didn't know what [defendant] was going to do."
Detective Elliot Ramos was on duty the night of the incident, and was therefore initially charged with its investigation. Ramos identified the cell phone as the one the victim said had fallen "from the person of the black male who robbed him." According to Ramos, Ramkhalawan opened the phone and immediately recognized the photo displayed as a screen saver as a photo of the person who had robbed him.
Ramos also explained to the jury how records obtained from the cellular provider led police to the home of defendant's mother in Georgia, where defendant was eventually apprehended.
Finally, Ramos presented a sworn affidavit indicating that defendant had not applied for a permit to carry a handgun or firearm.
Defendant testified that on the night of the incident, he had taken marijuana and ecstasy. On that same evening, Phillip, (J.B's brother), called him "to take him to where he could get some weed." Phillip and J.B. picked him up in a Jeep driven by Phillip, who then asked defendant to borrow his phone "to make some calls to see if he could borrow some money to get a bag." Defendant observed Phillip make "a couple calls."
According to defendant, the brothers wanted to go to the Red Bank Marina because they knew someone who worked near there that could lend them money. Upon arrival, they parked the car; Philip and J.B. left the vehicle; defendant stepped out of the vehicle to smoke a cigarette. Defendant then gave the following description of what transpired next:
As I walked toward the entrance where that alley was, I could see fighting, a scuffle going down, ...