On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-05-0558.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and Simonelli.
Passaic County Indictment No. 05-05-0558, charged defendant, Ruben Mejias, and co-defendant, Wilfredo Toribio, with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); and second-degree robbery, N.J.S.A. 2C:15-1(a)(1) or (2) and N.J.S.A. 2C:2-6 (count two). Additionally, the indictment charged defendant with fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count three); and fourth-degree obstructing administration of law, N.J.S.A. 2C:29-1(a) (count four). Counts one and four were dismissed prior to defendant's trial.
The jury returned a guilty verdict on both charges. After granting the State's motion for an extended term, defendant was sentenced to eighteen years incarceration, subject to an eighty-five-percent period of parole ineligibility under the "No Early Release Act," N.J.S.A. 2C:43-7.2 (NERA) for robbery, and one and one-half years incarceration for resisting arrest, to run concurrent to the sentence imposed for robbery. Applicable fines and penalties were also ordered.
Defendant appeals his conviction and sentence arguing:
POINT I. FAILURE TO INSTRUCT THE JURY SPECIFICALLY AS TO THE INAPPLICABILITY OF "AFTERTHOUGHT ROBBERY" VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL MANDATING REVERSAL AND REMAND. (PARTIALLY RAISED BELOW).
POINT II. THE TRIAL COURT FAILED TO GRANT [DEFENDANT'S] APPLICATION FOR A MISTRIAL BASED UPON THE COMPLAINANT'S INAPPROPRIATE AND IMPERMISSIBLE TESTIMONY ABOUT AN ALLEGED PRIOR ATTEMPTED ROBBERY ATTRIBUTED TO [DEFENDANT] IN NEW YORK.
POINT III. REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT DURING SUMMATION DENIED [DEFENDANT] HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL FREE FROM TAINT AND INFLAMED PASSIONS OF THE JURY DEPRIVING THE DEFENDANT OF A FAIR TRIAL. U.S. Const. Amends. V, VI, XIV; N.J. Const. Art. I, ¶¶ 1, 10. (NOT RAISED BELOW).
POINT IV. A REMAND FOR FURTHER PROCEEDINGS PURSUANT TO STATE V. PIERCE IS REQUIRED IN THIS MATTER. (NOT RAISED BELOW).
POINT V. THE TRIAL COURT'S IMPOSITION OF EIGHTEEN YEARS IMPRISONMENT SUBJECT TO THE NO EARLY RELEASE ACT WAS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED. ADDITIONALLY, THE COURT IMPOSED AN ILLEGALLY LONG PERIOD OF PAROLE SUPERVISION. (NOT RAISED BELOW).
The following facts are taken from the trial testimony of the State's witnesses. On January 3, 2005, Mr. Mauricio Thiebaud, a 63 year-old employee of World Wide Wholesale Trading, Inc. (World Wide), traveled from Bronx, New York to a tobacco wholesaler known as Pine Lesser & Company (PL&C) in Clifton. Because World Wide agreed to purchase tobacco products in cash, Thiebaud frequently carried large sums of money when he made purchases from PL&C. On this date, Thiebaud was carrying $22,000.
Thiebaud arrived at PL&C and pulled into the driveway. He looked around and saw defendant, who was wearing a gray sweatshirt and jeans, pacing back and forth on Lakeview Avenue beyond the PL&C entrance. Thiebaud waited two minutes then exited his van. Without saying a word, defendant approached Thiebaud and punched him in the face. Defendant continued hitting Thiebaud about the head and ribs. When Thiebaud dropped the money bag he was carrying, defendant grabbed the money, ran toward the street and was picked-up by an approaching gray four-door vehicle with Pennsylvania license plates. Thiebaud ran toward the car and scratched it with a box cutter. Thiebaud saw another man waiting across the street by a green van, who he believed saw the entire incident, but did not come to his aid.
Benjamin Ocampo also witnessed the incident, as he sat in his van across the street from PL&C. Ocampo alerted the police and followed the gray car as it drove away. Initially, a green van with Pennsylvania plates impeded Ocampo's pathway. Ocampo drove around the green vehicle and looked for the gray car. He drove around the block and saw the car had stopped. Ocampo watched the two male occupants exit the car and begin walking. The driver of the gray car, later identified as Toribio, was apprehended by police. Defendant kept walking. When defendant was approached by Officer Napoleone, he took off on foot.
Thereafter, defendant was cornered and arrested. The search of defendant's person, incident to arrest, revealed a plastic bag of money stuffed into his waistband.
Ocampo identified defendant as the man who attacked Thiebaud. Also, Thiebaud identified: (1) Toribio as "one of the guys" involved in the incident; (2) the car defendant entered as he left PL&C; (3) the money found on defendant as World Wide's funds; and (4) defendant as his attacker.
When apprehended, defendant was wearing a dark pullover with the word "Brooklyn" across the front. This shirt and a gray hooded sweatshirt were included in the police property inventory when defendant was jailed. Additionally, included among defendant's possessions was a single key.
Defendant testified on his own behalf. He stated he approached Thiebaud to speak to him regarding repayment of a debt owed to Toribio. Toribio offered to pay defendant $1,500 for his assistance. Also, Toribio gave defendant a key to Thiebaud's truck, and told him to "use this if he locks himself in the truck." Defendant explained he often aided others in this way "to help them with their problems."
As defendant "approached [Thiebaud] to speak to him," he stated Thiebaud pulled a "knife" from his back pocket. Defendant admitted he punched Thiebaud in the head "a few times." Defendant testified he struck Thiebaud in self-defense and continued hitting him until he was "no longer a threat." It was then that defendant noticed two clear bags of money had fallen from the plastic bag Thiebaud held. Defendant grabbed the larger of the two bundles and ran to Toribio's car. When defendant looked back, he saw Thiebaud coming at him with the "knife" in his hand. Defendant saw Thiebaud scratch Toribio's car with the weapon.
Defendant stated he had no intention of using force to obtain payment of Toribio's debt, and he had no idea Thiebaud was carrying tens of thousands of dollars. Defendant admitted he ran from the police "because they all had their guns out and they were like 'freeze.'" Defendant also stated he put the money in the pocket of his hooded sweatshirt, which he threw to the ground as he fled.
Defendant's first argument on appeal seeks to overturn his conviction for robbery because the jury was not properly instructed. Defendant states if he did not formulate the intent to steal until after the conclusion of the physical altercation, as a matter of law, he could not be guilty of robbery. Defendant asserts the blows to Thiebaud were justified to prevent him from being harmed. When Thiebaud stopped his attack, defendant caught sight of the bundle of money, which he took. He argues the "centerpiece of [his] defense" based upon the "unique facts of this case[,]" present an "'afterthought' robbery -- the situation in which a defendant does not formulate the intent to steal until after force is used[,]" which does not satisfy the requisites of N.J.S.A. 2C:15-1(a). See State v. Lopez, 187 N.J. 91, 93 (2006).
Erroneous jury instructions on material issues are usually presumed to be reversible error, State v. Crisantos, 102 N.J. 265, 273 (1986), as "[e]rroneous instructions are poor candidates for rehabilitation as harmless [error]." State v. Afanador, 151 N.J. 41, 54 (1997). When evaluating the propriety of a jury charge, however, we do "not excise and examine in isolation those statements alleged to be obscure or ambiguous, but looks to the charge as a whole." State v. Freeman, 64 N.J. 66, 69 (1973).
In Lopez, supra, the Supreme Court instructed that N.J.S.A. 2C:15-1(a) does not encompass afterthought robbery. 187 N.J. at 93. The Court cited to the commentary to the Model Penal Code ...