On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1371.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Baxter.
Following a trial by jury, defendant Tarique Scott was convicted of second-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4) (count five).*fn2 On January 9, 2008, defendant filed a timely notice of appeal of his December 14, 2007 conviction.*fn3
The judge sentenced defendant on count one to a ten-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. After merging count four with count three, the judge imposed a five-year term of imprisonment on count three. He imposed a four-year term of imprisonment on count five. Although the judgment of conviction (JOC) does not specify whether those three sentences were concurrent or consecutive, the judge specified at sentencing that count three would be concurrent to count one, and count five would be consecutive to the sentences imposed on the other two counts.*fn4 The sentence on Indictment 06-08-1371 was ordered to be served concurrently with three violation of probation sentences, as well as a sentence imposed on Indictment 07-06-956, which charged terroristic threats.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT'S JURY INSTRUCTIONS DEPRIVED MR. SCOTT OF HIS RIGHT TO A FAIR TRIAL. (Partially Raised Below).
A. THE TRIAL COURT OPENED THE DOOR TO A CONVICTION BASED ON ACTS NOT CHARGED IN THE INDICTMENT.
B. THE TRIAL COURT ALLOWED FOR A NON-UNANIMOUS VERDICT BY FAILING TO CHARGE ON MULTIPLE VICTIMS.
C. THE TRIAL COURT BOLSTERED THE STATE'S CASE BY IMPROPERLY CHARGING THE JURY THAT MR. SAVU IDENTIFIED MR. SCOTT IN COURT.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
III. THE PCR COURT ERRED BY PROCEEDING WITH A RULING ON MR. SCOTT'S PCR PETITION WHEN HIS DIRECT APPEAL WAS PENDING SO THE COURT SHOULD ACCEPT THIS BRIEF AS A DIRECT APPEAL. (Not Raised Below).
We reject the claims defendant advances in Points I and II. We affirm defendant's conviction and sentence. We do, however, agree with defendant's contention in Point III that he should be permitted to separately appeal the denial of his PCR petition, as the claims he has advanced in the present appeal are of the sort typically presented on direct appeal, not in a PCR petition. We also note that in the PCR proceeding, defendant raised ineffective assistance of counsel claims, the denial of which he has not raised on appeal. We therefore conclude that if defendant seeks to challenge the denial of his PCR petition, as he apparently does, he should file a separate notice of appeal from that determination. We thus agree with the claims defendant advances in Point III.
On April 12, 2006, Crystal Newsome and Florin Savu were walking on a narrow sidewalk in Jersey City when they were approached by two men walking close together who both had their hands in their pockets. One was considerably taller than the other.
As the men walked past Newsome and Savu, one of the two punched Savu in the face, causing him to fall backward. According to Newsome, one of the men said "give us your money, . . . and you won't get shot." Savu, in contrast, testified that both men demanded money, and both threatened to shoot Newsome and Savu if they did not do as they were told. Believing that the assailants did indeed have a gun, Savu retreated to the middle of the street in hopes that an approaching car could be of some assistance. With his hand still in his pocket, the taller man, later identified as defendant, followed Savu into the middle of the street, and ordered him to throw his wallet to the ground. Rather than comply with that instruction, Savu began to take the cash from the wallet and hand it to defendant. Not satisfied, defendant grabbed Savu by the shirt and attempted to seize his wallet. The two began to struggle. Because defendant was not able to overpower Savu, he picked up a metal broom handle lying on the street and began hitting Savu in the head.
While defendant was demanding Savu's wallet and attacking him, co-defendant McKnight remained on the sidewalk with Newsome, where he demanded she give him her money. After telling him that she only had quarters, she began to dole them out slowly to distract McKnight so that he would be prevented from assisting defendant in attacking Savu.
While defendant was still swinging the metal stick at Savu, two police cars on routine patrol arrived on the scene and several officers intervened. Officer Maria Ruocco testified that while observing defendant beating Savu with the metal stick, she yelled "freeze," but defendant took off running. He then stopped and was taken into custody. McKnight, who had run in a different direction when he saw the police, was later captured hiding in a nearby yard.
Newsome and Savu identified defendant and McKnight as the men who had threatened to shoot them if they did not give up their money. The on-scene identification occurred no more than five minutes after police first arrived. At police headquarters, Newsome and Savu again identified defendant as one of the two assailants. Savu completed a signed witness identification statement declaring that he identified defendant as the assailant who punched him, tried to steal his wallet, struck him with the metal stick and threatened to shoot him. Nonetheless, at trial, the prosecutor did not ask Savu to identify defendant; however, the prosecutor did pose that question to Newsome, Ruocco, and Officer Brian Fitzgerald, another officer who arrived at the scene, and all three identified defendant in court as the assailant who struck Savu with the metal stick.
During the charge conference, the judge discussed his intention to instruct the jury on both subsection (1) of the robbery statute, for knowingly "us[ing] force" upon Savu and Newsome during a theft, and well as subsection (2) for "threaten[ing] [them] with or purposely put[ting] [them] in fear of immediate bodily injury." Defendant asserted that the indictment only charged him with a violation of subsection (1) of N.J.S.A. 2C:15-1. The judge overruled defendant's objection and included subsection (2) in his charge to the jury.
During the charge, in the course of his instruction concerning in-court and out-of-court identifications, the judge mistakenly stated that Savu, in addition to the other three witnesses, had identified defendant in court as the person who repeatedly struck him ...