On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 07-07-1085.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2009
Before Judges Lisa, Baxter and Alvarez.
Defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and third-degree possession of a weapon (a metal bar) for an unlawful purpose, N.J.S.A. 2C:39-4d. After merging the weapons conviction with the robbery conviction, the judge sentenced defendant to a mandatory extended term pursuant to N.J.S.A. 2C:43-7.1b(2) (a provision in the "Three Strikes Law"), to twenty years imprisonment, subject to an 85% parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. Because the jury instructions regarding accomplice liability were inaccurate and misleading, we reverse and remand for a new trial.
This is the State's version of the facts as adduced at trial. At about 5:40 a.m. on March 4, 2006, Victor Panales Jiminez, a cab driver driving a livery van, picked up a fare in Dover. After Jiminez electronically opened the rear doors, the man got into the driver's side rear door and sat directly behind Jiminez. The man then demanded that Jiminez turn over his wallet and give him money. He held an iron bar against Jiminez's throat.
Jiminez was pulled out of the driver's seat while being choked and pushed to the center of the van between the two front seats. Jiminez believed there was more than one person in the van because his arms were grabbed and he was being pulled in different directions and struck, while he was continuing to be asphyxiated with the iron bar. He estimated there were as many as four attackers. Jiminez gestured toward the visor above the driver's seat, where he had placed $500. In addition, Jiminez had $8 in his wallet. The assailants stole his wallet and the $500.
During the course of the attack, one of the assailants, believed by Jiminez to be the individual he picked up as his fare, moved into the driver's seat with the van still running. Jiminez could feel the van moving and felt an impact when it crashed into something.
A resident in the immediate vicinity heard the crash and looked out his window. He saw that the van crashed into his parked car. He could not see inside the van because of its tinted windows, but he observed that all of the doors of the van were closed. He also observed that the van was being operated because it "had pulled up and was making a turn." By the time the resident got downstairs, "[t]hey had apparently finished the turn," and the van was pointing in the opposite direction as when he first observed it. The driver's side door and the passenger side sliding door were open. He did not see any assailants. He saw only Jiminez, who staggered out of the van in an apparently injured and disoriented state.
Jiminez was communicating by walkie-talkie in his native Spanish language with someone at his cab company. Jiminez then got into the van and drove away. The resident called the police. Jiminez presented himself at the police station with at least one colleague from the cab company, who served as an interpreter. Jiminez gave a statement to the police describing the events in the manner we have described them.*fn1
Jiminez could give only a very general description of the first man who entered the van as his fare. He was unable to give any particularized description of the other assailants.
In their investigation, the police recovered a metal bar from the van, which Jiminez said was not present in the van prior to this incident. The police also detected fresh blood stains on Jiminez's sweater, upholstery of the van seats, and the driver's side visor. Based on some prior involvement with law enforcement, defendant's DNA profile was included in a DNA database. See N.J.S.A. 53:1-20.17 to -20.37 (the DNA Database and Databank Act of 1994). Forensic testing of the blood stains from the visor and Jiminez's sweater yielded positive results matching them to defendant.
On December 15, 2006, defendant was in custody in the Morris County jail. Pursuant to a search warrant, the police obtained a buccal swab of defendant, which confirmed the DNA match from this incident. The police interviewed defendant on that date, after administering Miranda*fn2 warnings. The police advised defendant of the incident they were investigating and informed him of the DNA match. Defendant denied any knowledge of the robbery or how his blood may have come to be in the van.
On April 18, 2007, after again being administered Miranda warnings, defendant was interviewed further. Defendant continued to deny any knowledge of the incident. On that date, defendant was taken into custody and charged with the robbery and assault of Jiminez.
On July 25, 2007, a Morris County grand jury returned a five-count indictment against defendant. The first four counts charged him with the following offenses, "acting as a principal and/or accomplice": (1) first-degree armed robbery, N.J.S.A. 2C:15-1a(1); (2) first-degree carjacking, N.J.S.A. 2C:15-2a(1); (3) first-degree carjacking, N.J.S.A. 2C:15-2a(4); and (4) third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The fifth count charged defendant with second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1; N.J.S.A. 2C:5-2.
No other assailants were ever identified or apprehended. At defendant's trial, Jiminez and the resident testified for the State, as did various police witnesses and scientific experts.
Defendant testified in his own behalf. He acknowledged being in the van and having an interaction with Jiminez, but described the events very differently.
According to defendant, about a week before this incident, he and several friends rode in a taxicab van and "stiffed" the driver, running from the van without paying the fare, which was about $17 or $18. On March 4, 2006, defendant hailed a cab, and it turned out that it was the same van and the same driver that he and his friends had stiffed. Defendant claimed that Jiminez recognized him, closed and locked the doors, and asked whether defendant remembered him. Jiminez then said, "policia," meaning that he was going to drive to the police station, presumably to report the incident from the prior week. Defendant reached over into the driver's area in an attempt to "hit the mechanism" to unlock the door. Jiminez elbowed him. A scuffle ensued, and defendant eventually exited the van and fled.
Defendant contended he was alone during the incident. He said he acted as he did because, in light of his prior criminal record, he did not want to go to the police station. Defendant denied possessing or using any sort of metal bar. He denied robbing Jiminez or stealing any money from him. By this version of the events, defendant provided an explanation as to how his blood ended up on Jiminez's sweater and on the visor.
The prosecutor cross-examined defendant about his prior inconsistent statements to the police, in which he denied being in the van on March 4, 2006.*fn3 Defendant said he denied being present in the van because of his belief that, in light of his prior criminal record, the police would not believe his version of the events.
The jury acquitted defendant of both carjacking counts and conspiracy to commit robbery. It found him guilty of first-degree armed robbery and possession of a weapon for an unlawful purpose. The judge imposed sentence as we previously set forth.
On appeal, defendant raises the following arguments through his counsel:
THE JURY INSTRUCTIONS ARE REPLETE WITH ERROR SUCH AS THE INCLUSION OF INAPPLICABLE CHARGES AND THE EXCLUSION OF RELEVANT LAW. (Not Raised Below).
A. The Court Failed To Charge The Lesser-Included Offense Of Second Degree Robbery.
B. The Accomplice-Liability Charge Was Not Tailored To The Facts Of The Case, And Failed To Explain How The Accomplice Theory Applied To The Lesser-Included Offenses.
C. The Court Failed To Explain That The Statements Of The Defendant Could Only Be Used To Impeach.
D. The Trial Court Failed To Follow The Mandates Of R. 1:8-8(b) And Properly Instruct ...