May 20, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRELL FARRINGTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 93-10-1572.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2010
Before Judges Fisher and Espinosa.
On the evening of October 12, 1992, a man (Ira, a fictitious name) was in a Fort Lee hotel for the purpose of having sexual relations with a fifteen-year old girl, who was accompanied by another woman, Tara (also a fictitious name).
During the evening, Tara left the room to sit in the vehicle in which the group arrived to listen to music. While there, Tara was approached by a woman carrying what she described as "two 25 automatics" and a man carrying a "big sawed off shotgun." The armed woman knocked on the vehicle's window and asked Tara for Ira's room number. When Tara said she did not know, the two assailants removed her from the front seat of the car, tied her hands behind her back, laid her down in the back seat, taped her ankles and put tape across her mouth; they removed ninety dollars from her wallet.
At approximately the same time, Ira and the fifteen-year old started out of their hotel room. While the door was open and before they departed, the armed assailants "rushed in and . . . pushed [Ira] on the bed face down." Ira noticed the man was holding a gun. The woman pushed Ira "on the bed and kind of straddled [him] with [his] face down and she said something like she is the police and [he] should just cooperate." But, as the woman began to tape his hands behind his back, Ira concluded she was not a police officer and started to struggle, at which point the man "took the gun and hit [him] with it in the head." The armed assailants then pushed Ira into the bathroom, took his wallet and fled. Police were called to the scene.
The following day, Ira received telephone calls from a woman whose voice sounded similar to the woman who robbed him the night before. The caller identified herself as a police officer and claimed to have videotapes of Ira engaged in lewd behavior; the caller stated that she was willing to exchange the videotapes for money. Ira contacted the police, who instructed that he meet the caller's demands. Ira told the caller he would leave $3,000 in a bag in a telephone booth at the hotel where he and Tara were robbed. The police set up surveillance and immediately arrested defendant after she removed the bag of money from the telephone booth.*fn1
At the police station, Tara and Ira were shown a photographic array. Ira could not make an identification, but Tara selected a photograph of defendant as the woman who robbed her.
Defendant was charged with three counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one, two and three), second-degree burglary, N.J.S.A. 2C:18-2 (count four), one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five), one count of third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count six), and one count of second-degree attempted extortion, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-5 (count nine).
Defendant did not appear for trial. Before she absconded, defendant visited Tara at her home and apologized for the robbery. She also asked Tara not to testify. Tara reported the incident to police.
Defendant was tried in absentia and convicted on all charges except one of the robbery counts (count three), which the State voluntarily dismissed. Defendant remained at large for more than eight years. She was finally apprehended in March 2005. At sentencing, the judge merged the two robbery convictions (counts one and two) with each other and the two weapons convictions (counts five and six) with each other, and sentenced defendant to ten-year concurrent prison terms on the merged robbery convictions, the burglary conviction, and the attempted extortion conviction, and a concurrent five-year prison term, with a three-year period of parole ineligibility, on the weapons conviction.
Defendant appealed, presenting the following arguments for our consideration:
I. THE DEFENDANT'S CONVICTION ON COUNTS ONE, TWO, FOUR AND FIVE MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY ON ACCOMPLICE LIABILITY (NOT RAISED BELOW).
II. THE TRIAL COURT'S INSTRUCTIONS ON COUNT SIX, POSSESSION OF A HANDGUN WITHOUT A PERMIT, FAILED TO DIFFERENTIATE BETWEEN THE SAWED OFF SHOT GUN ALLEGEDLY USED BY DEFENDANT'S ALLEGED ACCOMPLICE DURING THE ROBBERY AND THE HAN[D]GUNS ALLEGEDLY POSSESSED BY THE DEFENDANT AND DEFENDANT'S CONVICTION ON THAT COUNT MUST ACCORDINGLY BE REVERSED (NOT RAISED BELOW).
III. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND HER CONS[T]ITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HER WHEN THE TRIAL COURT FAILED TO CONDUCT A SEARCHING INQUIRY REGARDING THE REASONS FOR THE DEFENDANT'S ABSENCE AND WHETHER OR NOT HER ATTENDANCE AT TRIAL COULD BE SECURED PRIOR TO TRYING THE DEFENDANT IN ABSENTIA (NOT RAISED BELOW).
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding Points I and III.
In Point I, defendant argues that the trial judge erred in failing to instruct the jury on accomplice liability. Prior to charging the jury, the judge explained the content of his instructions; defendant did not then object to the absence of an accomplice liability charge. In fact, during the course of the charge, it was the prosecutor who interrupted and sought instructions on accomplice liability. Defense counsel objected, arguing that such a theory was not contemplated by the allegations contained in the indictment. The trial judge agreed with defendant's position and did not give the charge.
We find no error in the judge's ruling. The evidence fully supported the State's theory that defendant was an active participant in the robberies. Moreover, even if we could find some error in this regard, the invited error doctrine would require that we reject defendant's claim to a new trial. See State v. Loftin, 146 N.J. 295, 364-65 (1996).
As for Point III, we find no merit in defendant's argument that the trial judge should have more searchingly examined the reasons for defendant's absence before proceeding with the trial. Rule 3:16(b) authorizes trials in absentia when the accused knew of the trial date and knowingly and voluntarily waived the right to be present. Here, defendant admitted at sentencing that she was aware of the trial date and ran away rather than attend the trial because "she got scared." In addition, Tara testified that defendant visited her the day before trial and asked her not to come to court "tomorrow" and testify against her. There is no doubt that defendant knew of the trial date, and knowingly and voluntarily absconded rather than attend.
We lastly note that the State has argued that the judge made numerous errors in passing sentence. Specifically, the State contends that the judge erroneously: (a) failed to include a mandatory parole disqualifier on the robbery and burglary convictions; (b) sentenced defendant to concurrent terms on the two robbery convictions; (c) merged the weapons convictions; and (d) failed to merge the conviction for possessing a weapon for an unlawful purpose with the armed robbery and burglary convictions. We reject these arguments because the State did not object at the time of sentencing and did not file a cross-appeal. State v. Mays, 321 N.J. Super. 619, 634 (App. Div.), certif. denied, 162 N.J. 132 (1999); State v. Sanchez, 183 N.J. Super. 391, 396 (App. Div. 1981), certif. denied, 91 N.J. 232 (1982).