On appeal from the Superior Court of New Jersey, Law Division, Union County, 06-02-0091-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Winkelstein.
Defendant, Aneesha Scott, and her co-defendant, Nathaniel Tucker, were indicted in Union County, Indictment No. 06-02-0091, with two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one and two); and possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d (count three). Following a trial in August 2006, the jury was unable to reach a verdict as to Tucker, but convicted defendant of the robbery counts and acquitted her on the weapons charge. The trial judge imposed two concurrent twelve-year prison terms 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. On appeal, defendant raises the following legal arguments for our consideration:
THE TRIAL JUDGE'S WOEFULLY INSUFFICIENT AND CONFUSING CHARGE ON ACCOMPLICE LIABILITY WAS AWKWARDLY SEPARATED FROM THE ROBBERY CHARGE, CONCENTRATED EXCLUSIVELY ON THEFT AS THE ONLY POSSIBLE LESSER INCLUDED OFFENSE, AND WAS INSUFFICIENTLY TAILORED TO THE FACTS OF THE CASE. THE INSTRUCTION PRECLUDED THE JURY FROM CONSIDERING SECOND DEGREE ROBBERY AS A POSSIBLE VERDICT, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL. (Not Raised Below).
THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURORS THAT THEY COULD CONSIDER AS SUBSTANTIVE EVIDENCE BOTH VICTIMS' PRIOR INCONSISTENT STATEMENTS REGARDING WHO ACTUALLY TOOK THE PURSE, DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).
THE PROSECUTOR'S CROSS-EXAMINATION AND SUMMATION, WHICH SUGGESTED TO THE JURY THAT THE DEFENDANT WAS GUILTY BECAUSE SHE FAILED TO OBTAIN WITNESSES WHO COULD CORROBORATE HER ACCOUNT, IMPROPERLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT, AND VIOLATED HER RIGHT TO REMAIN SILENT, DENYING HER A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. 1, PARAS. 1, 9, 10. (Partially Raised Below).
THE PROSECUTOR'S IMPROPER REMARKS DENIED THE DEFENDANT A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 10. (Not Raised Below).
UNDER ALL OF THE RELEVANT CIRCUMSTANCES, THE COURT ABUSED ITS DISCRETION IN FIRST REFUSING TO SENTENCE DEFENDANT AS A SECOND DEGREE OFFENDER, AND THEN SENTENCING HER TO A TERM GREATER THAN THE MINIMUM FOR A FIRST DEGREE OFFENSE.
We substantially agree with defendant's arguments in points one through four, and consequently reverse her convictions, rendering moot defendant's argument concerning her sentence in point five.
Shortly after midnight on July 20, 2005, Lilliana Ferreira and her boyfriend, Boris Quizpe, were walking on North Broad Street in Elizabeth toward their apartment. Three people were walking toward them, two black men and one black woman. Ferreira described the woman as small with short hair, and one of the men as wearing red basketball shorts, coming below his knees, and no shirt.
Ferreira testified that the man with the red shorts grabbed her hair and put a knife to her neck, then punched her in the head and kicked her in the leg, knocking her to the ground. She stated that the "girl grabbed [her] purse." Contrary to the latter statement, when questioned by the police on the night of the incident, Ferreira gave the following statement: "The other black guy who was after Boris took my purse."
Quizpe described the woman as small and wearing jean shorts, and the man as wearing red "surf pants" but not wearing a shirt. Ferreira and Quizpe both described the man with the red pants as tall, and both claimed that the woman told the men to take Quizpe's cell phone from him because he was trying to call the police. Neither victim testified that the woman had a knife or any other weapon.
Quizpe testified at trial that defendant "was the one who took the bag from [Ferreira]." In his statement to the police following the incident, however, he said that he did not know who took Ferreira's purse.
When the two men and the woman ran away, Ferreira stayed at the scene. Quizpe ran after them, and was joined by another individual, John Sanchez, who had seen two black men and a black woman walking down the street. He described one of the men as wearing red sweat pants, down to the ankle, with a white t-shirt, and the woman as wearing "short pants of jeans and [a] red shirt." He saw the woman carrying a white purse.
After observing those people walk past him, Sanchez saw Quizpe running and screaming for help. He then joined Quizpe and walked behind the three individuals, who were no longer running. After losing the three individuals, Sanchez and Quizpe were joined by two men in a pickup truck. As they rode in the truck, Quizpe saw one of the men and a woman hiding behind a car, and the other man hiding behind another car.
Sanchez had a different recollection. He saw the three people walking toward them and he recognized the woman because she was still carrying the white purse, and one of the men was wearing red sweat pants and a white t-shirt.
Sanchez grabbed the woman, left her with the men from the pickup truck, and he followed the man in the red pants until he lost him behind a house. When Sanchez returned to the street, he found the white purse underneath a parked car.
Officers had responded to the scene. When they took defendant to the area where the robbery occurred, Ferreira identified her from across the street as one of the individuals who robbed her. Ferreira claimed that a gold necklace and some loose change were missing from her purse. When defendant was apprehended, she did not have Quizpe's cell phone or the gold chain.
Tucker was arrested at a take-out restaurant. From a police patrol car, both Ferreira and Quizpe identified him as one of the robbers. Sanchez identified Tucker as one of the men he had previously seen. Tucker was not in possession of a knife or any of the proceeds from the robbery.
Defendant testified at trial. She admitted that she was at the scene of the robbery, but she denied taking part in the robbery. She testified that her co-defendant was not one of the men who robbed the victims. She claimed that she had been visiting her brother on the night of the incident, and was outside his building with about ten or twelve other people when she asked her brother for cigarettes and he told her he did not have any. Then, she and two of the men who were there, whom she knew only as "Ant" and "Vern,"*fn1 walked to a gas station in Elizabeth to purchase cigarettes. They left after 11:00 p.m. and reached the store approximately one-half hour later. Defendant purchased a pack of cigarettes, a soda, and a cigar.
Defendant testified that as they walked back to her brother's residence, the two men whom she was with robbed the victims. Ant "had the lady by her head, her hair and he had the ...