January 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ELIJAH COMER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, 04-11-3540-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Collester and Miniman.
Defendant Elijah Comer was indicted by an Essex County grand jury for first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count two); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count three); and second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count four). Tried to a jury, he was convicted of second-degree robbery as a lesser-included offense of count one and of all the other counts of the indictment. On July 15, 2005, defendant was sentenced by the trial judge, Judge John C. Kennedy, to an aggregate sentence of seven years imprisonment with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals his convictions and sentence, setting forth the following contentions:
POINT I -- THE JURY'S VERDICT OF GUILT ON THE ROBBERY COUNT WAS RENDERED UNRELIABLE BY THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY THAT AGGRAVATED ASSAULT AS ALLEGED IN COUNT FOUR WAS A LESSER-INCLUDED OFFENSE OF ROBBERY AS ALLEGED IN COUNT ONE. (Partially Raised Below.)
POINT II -- THE PROSECUTOR'S TRIAL TACTICS GROSSLY EXCEEDED THE BOUNDS OF PROPRIETY, THEREBY DEPRIVING COMER OF A FAIR TRIAL. (Partially Raised Below.)
A. DESPITE THE JUDGE'S FINDING TO THE CONTRARY, THE PROSECUTOR TOLD THE JURY THAT COMER'S PRIOR JUVENILE ARRESTS COULD BE USED FOR THE PURPOSE OF AFFECTING COMER'S CREDIBILITY.
B. THE PROSECUTOR'S REPEATED EFFORTS TO IMPUGN COMER'S DEFENSE WERE IMPROPER AND PREJUDICIAL.
C. THE PROSECUTOR'S REPEATED SUGGESTIONS THAT COMER HAD A BURDEN OF PROOF WERE IMPROPER AND PREJUDICIAL.
POINT III -- IN LIGHT OF THE FACT THAT COMER HAD NO PRIOR SUPERIOR COURT CONVICTIONS, A MID-RANGE "NERA" SENTENCE ON THE ROBBERY COUNT WAS EXCESSIVE.
On August 7, 2004, Darin Hamlin was working as a CD and DVD salesman on the street outside a supermarket in Orange. That evening he returned to his home, an apartment in a high rise apartment building at 991 Frelinghuysen Avenue in Newark. He was carrying two bags, one filled with CDs and the other with DVDs, and he was listening to music through his CD player and earphones. It was about 9:45 p.m. when he opened the door to his building and heard someone say, "Hold that door." Hamlin did so and let in someone he recognized and knew as Eli, later identified as the defendant. Hamlin, defendant, and another man got into the elevator. The defendant asked Hamlin which floor he was going to and pushed the button for the fifteenth floor. The unknown man got off the elevator at the seventh or eighth floor leaving Hamlin and defendant alone. After the elevator doors closed the defendant said to Hamlin, "Give me your shit." Hamlin thought defendant was joking until defendant grabbed his shirt and Hamlin saw the tip of a knife in defendant's other hand. The two men struggled until the elevator reached the fifteenth floor. When the doors opened the defendant pulled Hamlin, and the bags of CDs and DVDs fell to the floor. As Hamlin tried to resist defendant, he was stabbed in the right shoulder. When defendant loosened his grip, Hamlin escaped and ran down the emergency staircase to look for the security officer in the building. Unsuccessful, he then ran to an adjacent building, but still found no security officers. He then went to his friend's home and called the police and an ambulance. When the police arrived, Hamlin gave Newark Police Officer Dwayne Reeves a description of the person named Eli who stabbed and robbed him. Officer Reeves observed that Hamlin's right shoulder was blood-soaked. When the ambulance arrived, Hamlin was taken to Newark Beth Israel Medical Center for treatment of his shoulder wound.
Hamlin later told police that when he managed to escape on the fifteenth floor, he saw a man from the building known as "Junie Bug" in the hallway. That person, named Robert Carver, testified at defendant's trial that he had just gotten off the elevator on the fifteenth floor when he noticed two men arguing in the hallway. As he passed them, one of them told him to mind his own business. Carver did not look back until he entered his apartment and saw one of the men running down the hallway.
The last witness for the State was Detective Cynthia Baker of the Newark Police Department who spoke to Hamlin two days after the offense. After Hamlin described Eli to her, Baker showed him a photograph of the defendant. Hamlin identified the person in the photograph as the one who robbed him on August 7, 2004.
Testifying on his own behalf, the twenty-two-year-old defendant said he was familiar with the apartment building because his grandmother lived there and he would stay with her sometimes. He testified that he knew Hamlin for about nine or ten years under the name "Malik" and that he sold drugs to him on a regular basis up to three or four years before the incident. He said that on the night of August 7, 2004 he got into the elevator with Hamlin and an older man. Defendant said he asked the older man to push the button for the eleventh floor where his grandmother lived. After the man got off at the seventh or eighth floor, the elevator passed the eleventh floor, and defendant surmised the man had never pushed the button for him. He said that once he and Hamlin were alone in the elevator, Hamlin asked him if he had any drugs to sell. He responded that he no longer sold drugs but that Hamlin did not believe him and "gets all in my face trying to play with me." He said Hamlin became hostile, grabbed him and pulled out one of his dreadlocks. Defendant continued testifying that when the elevator door opened at the fifteenth floor, Hamlin hit him and ran out, bumping into a window. Defendant said he shoved Hamlin and then walked back to the elevator while Hamlin took off running. Defendant denied that he ever said to Hamlin, "Give me your shit," or otherwise tried to rob him. He also testified that he was not carrying a weapon and did not stab Hamlin.
Antero Fernandez, an investigator, testified for the defense that he went to the building to photograph the area outside the elevator on the fifteenth floor. The photographs showing four windows right outside the elevator were introduced into evidence. Fernandez said there were hooks protruding from the windows which were broken with jagged edges and could have caused Hamlin's shoulder wound after he was pushed by defendant.
On rebuttal the State called Dr. Howard Friedland, the emergency room physician who treated the laceration to Hamlin's arm. He testified that the wound was not jagged but was linear and consistent with a razor, a knife, or something else with a sharp edge.
Following summations and charge, the jury retired and later returned with its verdict of guilty.
Defendant's first contention is that the trial judge committed reversible error by failing to instruct the jury that aggravated assault alleged in count four of the indictment was a lesser-included offense of the robbery in count one. We find no merit to the contention. The statutory elements of robbery contained in N.J.S.A. 2C:15-1 are different from the elements of aggravated assault in N.J.S.A. 2C:12-1(b)(1). As stated by our Supreme Court in State v. Mejia, 141 N.J. 475, 498 (1995), "[r]obbery . . . is a more complex crime than theft plus assault . . . 'the shorthand understanding that robbery equals theft plus assault is inconsistent with the clear, albeit complicated, language of the Code.'"
Defendant cites State v. Harris, 357 N.J. Super. 532 (App. Div. 2003), in support of his contention that assault should have been charged to the jury as a lesser-included offense. In Harris the court held that the trial judge's failure to charge assault and terroristic threats sua sponte required reversal of a robbery conviction when the only offense submitted was armed robbery and the jury only had an "all or nothing" choice between conviction and acquittal on armed robbery. Id. at 541. Here there was no such "all or nothing" choice. The jury could have acquitted the defendant on one or both charges or found him guilty as to robbery, aggravated assault or both. A more comparable case is State v. Jones, 213 N.J. Super. 562, 570 (App. Div. 1986), in which we upheld a conviction for both robbery and aggravated assault where the testimony was that defendant facilitated the robbery by threatening the victim with a razor and subsequently injuring him.
The facts of this case support two separate offenses. The jury could properly find a robbery occurred in the elevator and an aggravated assault in the hallway where Hamlin said he was stabbed.
Defendant next argues prosecutorial misconduct deprived him of a fair trial. He asserts the trial prosecutor improperly told the jury in summation of his juvenile arrests. The prosecutor made prejudicial and improper comments impugning the defense and suggested that defendant had a burden of proof. As to the first contention, the prosecutor did not make reference to the defendant's juvenile record but merely referred to the defendant's own testimony that he was a "retired drug dealer." Furthermore, the judge properly instructed the jury that evidence introduced in the case that defendant had prior juvenile delinquency charges had no bearing on the credibility to be given to the defendant's testimony. No objection was taken to the comment, and the comment does not qualify as plain error. See State v. Wakefield, 190 N.J. 397, 435-38 (2007); R. 2:10-2.
We are concerned by the comments in the prosecutor's summation which could indicate his personal opinion as to the credibility of defendant's version of the events. Comments such as, "I don't believe it is believable" and "I don't think so" with reference to defendant's testimony were deemed improper by our Supreme Court in State v. Frost, 158 N.J. 76, 88 (1999). However, these brief references were insufficient to constitute plain error in light of the failure of defense counsel to object, thereby depriving the judge of the opportunity to ameliorate any prejudicial comments except through the charge to the jury. At worst, the error was harmless and was not such as to be "clearly capable of producing an unjust result."
Defendant further argues that two comments by the prosecutor attempted to shift the burden of proof to defendant. The first was in the prosecutor's opening when he stated, "It is important to [defense counsel] to ensure that his client's version of the events are known to you. You need to know everything." The judge sustained the objection to the comment and advised the jury that, "To the extent that [the prosecutor's] statement may have implied that defendant has such a burden, that's an incorrect statement of the law." We believe that the comment was properly clarified and the jury properly instructed.
The second comment was made during summation when the prosecutor said:
I don't have to prove to you to an absolute certainty that this guy right here, the defendant, slashed [Hamlin]. That's not the proof. Don't confuse it with beyond a reasonable doubt, and I submit to you, unlike the defense counsel, I have met that burden. (Emphasis supplied.)
Following summations of counsel, the trial judge instructed the jury in accordance with the Model Jury Charge that the State bears the burden of proof, that it never shifts to the defendant, and the defense has no burden of proof. We have no reason to assume that the jury disregarded this instruction.
Finally defendant contends that his sentence of seven years was excessive since he had no prior indictable convictions.
While we may review the aggravating and mitigating factors to determine whether the factors as found by the trial judge are based upon credible evidence in the record, the sentencing court has wide discretion as long as the sentence imposed is within the statutory term. State v. Roth, 95 N.J. 334 (1984). We may not substitute our judgment for that of the sentencing judge. State v. Johnson, 118 N.J. 10 (1990). In imposing the sentence Judge Kennedy found aggravating factors N.J.S.A. 2C:44-1(a)(3), risk of re-offense; (6) extent of defendant's prior record; and (9) need for deterrence. He found no mitigating factors. He made special note of the fact that while defendant had no indictable convictions at age twenty-two, he had accumulated six criminal arrests, five disorderly persons offenses, and committed the crimes in this case while on probation. Since the sentence was within the mid-range for the offense charged, we do not find it excessive.
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