January 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOBAL WILSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, 87-06-0686.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 29, 2007
Before Judges A.A. Rodríguez and C.L. Miniman.
Defendant Christobal Wilson was charged in a four-count indictment with first-degree armed robbery in violation of N.J.S.A. 2C:15-1 (Count 1), second-degree possession of a pistol for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) (Count 2), third-degree possession of a weapon in violation of N.J.S.A. 2C:39-5(b) (Count 3), and third-degree possession of hollow-nose bullets in violation of N.J.S.A. 2C:39-3(f) (Count 4). He was convicted in absentia after he failed to return for the second day of trial and on October 30, 1987, was found guilty on the first-degree armed robbery charge but not guilty on all of the weapons charges. Defendant was not apprehended for more than seventeen years and so was not sentenced until April 8, 2005. At that time the sentencing judge imposed a sentence of seven years with parole ineligibility for two and one-half years with credit for time served. A $30 V.C.C.B. penalty was also imposed. On June 7, 2005, the judge denied defendant's motion for reconsideration of sentence but amended jail credits for time served. This timely appeal followed and we affirm in all respects.
The armed robbery took place on May 16, 1987, where the victim was working as a gas-station attendant on Route 17 South in Paramus. A red Datsun 310 with two passengers pulled into the gas station. The front-seat passenger, co-defendant Javier Martinez, went to the restroom while the victim was checking the Datsun's oil level. When Martinez returned, he purchased a pack of cigarettes from the victim. As the victim walked toward the attendant's booth, Martinez and the second passenger, co-defendant Roberto Camacho, came toward him. Camacho was carrying a gun and pointed it at the victim. Martinez grabbed the victim and demanded money. The victim gave him money. Martinez then took the victim's wallet and watch. Defendant remained in the driver's seat watching the robbery. Camacho took the victim to a storage area and threatened his life if he did not remain there. Then Martinez and Camacho got into the Datsun and sped away.
The victim called the police and gave them a description of the Datsun and the three occupants. The three men were apprehended in Teaneck by officers from the Bergen County Police Department less than thirty minutes after the robbery. The police recovered the victim's watch, some money and the gun used during the robbery. The three men were taken to Hackensack where the victim had already been taken. He identified all three men as the perpetrators as the officers took them out of their patrol cars.
Camacho pled guilty to all four counts in the indictment and testified at trial. Camacho claimed that Martinez was asleep during the armed robbery and knew nothing of it until after they left the gas station and Camacho showed him the watch and the money. Camacho also testified that defendant knew nothing of his plans nor did he know that Camacho had a gun. Martinez also testified and claimed that he was asleep the entire time, knew nothing of Camacho's plans and did not know that he had a gun.
Appellant raises the following issue for our consideration:
POINT I - THE JURY INSTRUCTIONS ON ARMED ROBBERY AND ACCOMPLICE LIABILITY WERE INCOMPLETE, CONFUSING, AND PREJUDICIAL TO THE DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. (Not Raised Below)
In his pro se supplemental brief, appellant raises the following issues, which we have renumbered:
POINT II - DEFENDANTS [SIC] ATTORNEY, PROSECUTOR AND JUDGE VIOLATED NEW JERSEYS [SIC] RULES OF PROFESSIONAL CONDUCT VIOLATING DEFENDANTS RIGHTS.
POINT III - PROSECUTORIAL MISCONDUCT BY THE PROSECUTION IN SUMMATION AND VIOLATION OF RULES OF PROFESSIONAL CONDUCT.
As to the first issue, defendant contends that the jury instruction and verdict sheet did not give the jury an opportunity to return a verdict on the lesser-included offense of robbery. Specifically, he asserts that the theory behind the State's case against him was one of accomplice liability, in which case his state of mind could differ from the actor's state of mind. Defendant argues that the jury instructions and verdict sheet were hopelessly confusing and failed to adequately instruct the jury on how defendant's state of mind would affect the degree of crime of which he could be convicted.
Before the jury was instructed, the judge conducted a charge conference on the record and defendant's attorney asked for "the standard charge." The judge indicated that he was going to charge both defendants with second-degree robbery. The judge also agreed to instruct the jury that mere presence at the scene does not make a person a participant in the crime. After summations but before the luncheon recess, the judge provided the proposed verdict sheet to counsel. After lunch, the judge asked if counsel wished to discuss the verdict form and defendant's counsel stated that he had no exception to it. After the charge was given, the judge asked for exceptions to the charge and defendant's counsel stated, "I have none."
Defendant conceded that the first issue on appeal was not brought to the attention of the trial judge, depriving the judge of the opportunity to correct the charge before the jury returned its verdict.
It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.
[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quotation omitted).]
It is readily apparent that the issue raised with respect to the jury instructions does not "go to the jurisdiction of the trial court." Ibid. Neither does it "concern matters of great public interest." Ibid.
Even assuming arguendo that Neider did not preclude our review of the charge, we would find no plain error in it. We consider the charge as a whole, not in isolated fragments. State v. Savage, 172 N.J. 374, 386 (2002); State v. Jordan, 147 N.J. 409, 422 (1997). A charge may be found adequate even if it was not perfectly clear. State v. Harris, 141 N.J. 525, 556 (1995) ("This jury was given the correct instructions. At worst, they were not easy to follow."); State v. Masino, 94 N.J. 436, 447 (1983); State v. Wesner, 372 N.J. Super. 489, 494-95 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005). Of course, "[w]hen a prosecution is based on the theory that a defendant acted as an accomplice, the trial court is required to provide the jury with understandable instructions regarding accomplice liability." Savage, supra, 172 N.J. at 388. The instruction on accomplice liability should refer to the facts of the case. State v. Bielkiewicz, 267 N.J. Super. 520, 528, 533 (App. Div. 1993) (also observing that "the distinctions between the specific intent required for the grades of the offense" must be explained to the jury) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)).
Here, the judge advised the jury of the distinction between first-degree armed robbery and second-degree robbery. He explained the elements of second-degree robbery and referred to the facts in doing so. And he instructed the jury on accomplice liability. Then he related accomplice liability to robbery. He also included alternative fact findings on the jury sheet and the jury answered "Yes" to the first-degree armed-robbery question: "Did CRISTOBAL WILSON know ROBERTO CAMACHO had a gun and intended to aid him commit the theft with it?" The second-degree robbery fact-finding was immediately below the first-degree question and was not answered in light of the response to the first question. The order in which the questions were asked is no ground for reversal on the facts before us.
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's pro se arguments claiming misconduct by the prosecutor, the judge and defendant's attorney "are without sufficient merit to warrant discussion in a written opinion."
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