On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-0184.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and King.
In this appeal, defendant, who was charged with carjacking, argues, among other things, that he was prejudiced by the lack of a jury instruction on the lesser-included offense of theft.
Because we agree there was no factual basis for a finding of guilt on the lesser-included offense, we affirm. However, we conclude that the sentence imposed was excessive and remand for resentencing.
Testimony heard by the jury over the course of a three-day trial reveals that defendant attended a program in Egg Harbor Township as a condition of his parole. On December 22, 2004, defendant fled the program because a warrant had been issued for his arrest.
Around that same time, Gregory Pieri arrived at a Wawa convenience store in Egg Harbor Township. He parked but left the engine running. When he returned to his minivan after making a purchase in the store, Pieri sat in the backseat and proceeded to wrap Christmas presents for his family while he ate lunch. Suddenly, according to Pieri, defendant opened the driver's door, sat in the driver's seat and put the car in gear. Pieri described for the jury how defendant told him to "be quiet, not to say anything and he wouldn't shoot me." According to Pieri, defendant "motioned with his right hand down towards his pocket." Pieri testified to being in "shock or disbelief" as defendant drove the vehicle out of the parking lot.
Pieri removed a cell phone from his pocket and threatened to dial 9-1-1. Defendant said if Pieri gave him the phone he would let him out of the vehicle. Pieri refused, but defendant soon pulled to side of the road and let Pieri exit the vehicle.
Pieri called the police and provided a description of defendant and what had occurred. With this information, police vehicles located and pursued Pieri's stolen minivan on the Atlantic City Expressway. Officers testified that the minivan was moving at a high rate of speed and was driven erratically in and out of traffic. For safety concerns, the pursuit was terminated. Later that day, the vehicle was located in Camden, where it was being driven by Luis Torres, who testified that defendant, with whom Torres was acquainted, "rented" the vehicle to him for twenty dollars. Defendant was arrested in Camden the next day.
Defendant was indicted and charged with a single count of first-degree carjacking, N.J.S.A. 2C:15-2a(2). Following a trial, he was convicted as charged.
The State's motion for an extended term was granted and defendant was sentenced to a forty-five-year prison term with a period of parole ineligibility of thirty-eight years and three months pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.1.
Defendant appealed, presenting the following arguments:
I. THE OMISSION OF AN INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF THEFT AFTER AN EXHAUSTIVE DISCUSSION OF THE ISSUE WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT, ...