On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-01-0079, 06-02-0613 and 06-11-3540.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Baxter and Coburn.
On Indictment No. 06-01-0079, a jury found defendant guilty of first degree armed robbery, N.J.S.A. 2C:15-1, and fourth degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(d).
On Indictment No. 06-02-0613, defendant then pled guilty to first degree robbery. Defendant also pled guilty to all of the counts of Indictment No. 06-11-3540, which resulted in convictions for second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); four counts of fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a); fourth degree resisting arrest, N.J.S.A. 2C:29-2; and fourth degree obstruction of justice, N.J.S.A. 2C:29-1. After denying defendant's motion for a new trial, the trial judge imposed the following terms of imprisonment: on Indictment No. 06-01-0079, twenty years; on Indictment No. 06-02-0613, ten years; and on Indictment No. 06-11-3540, five years on count one, four concurrent eighteen month terms on counts two, through five; and five years concurrent on count six. The sentences imposed on the three indictments were consecutive and all subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On appeal, defendant argues for reversal because the judge failed to charge the jury on the subject of attempted theft (POINT I); erroneously denied the new trial motion (POINT II); erroneously charged the jury on defendant's election not to testify (POINT III); and abused his discretion by imposing an excessive sentence (POINT IV).
We reverse the conviction on the case tried to a jury because of the judge's failure to properly charge attempted theft. That renders POINT II and POINT III moot. We also note that the argument offered in POINT II is based on an argument we rejected in State v. Miller, 411 N.J. Super. 521, 532-33 (App. Div. 2010). POINT IV, the sentencing argument is based on the imposition of three consecutive sentences. Since we are reversing one of those sentences, the argument based on three consecutive sentences is moot as well. The remaining two sentences and the findings of aggravating and mitigating factors on which they are based are supported by the record. Neither sentence was an abuse of discretion and running them consecutively is consistent with the Yarbough principles. Consequently, we affirm the judgment insofar as it concerns the two indictments as to which defendant entered guilty pleas.
On September 1, 2005, at approximately 5:00 p.m., Tyrone Simpson was working at Carmashin's Pharmacy in Newark. Defendant walked into the store through the front entrance carrying a bag over his left shoulder. He had on a yellow hardhat, a jacket, jeans, and boots, and a dust mask, which was around his neck. Simpson immediately recognized defendant as someone he had seen twice before in the store and also said that he knew where defendant lived. Defendant was standing about six feet away from Simpson when he pulled up the mask. After pulling on the mask, defendant reached into the bag and told Simpson to "back up before I pop you." After Simpson backed up about twenty-five feet into the store, defendant pulled out of the bag what appeared to Simpson to be a sawed-off shotgun.
Defendant told Shemqua Datwani, the store manager, "to give him the money." Datwani thought defendant was holding a stick, a club, or a gun. While defendant was confronting Datwani, Simpson and a customer escaped through a door at the rear of the store. Simpson saw a police car and reported the robbery to Detective Lima of the Newark Police Department. Simpson entered the patrol car and Lima drove to the front of the store. In the meantime, Datwani had also been able to flee the store. Defendant did not take anything belonging to the store or its occupants.
When Lima and Simpson arrived at the front of the store, they saw defendant in flight with what appeared to be a "shotgun barrel" in his left hand. They gave chase, running after defendant, losing sight of him momentarily, but later finding him "running and hopping fences." By then the defendant had shed his jacket, shirt, and hat. With the help of other police officers, Lima cornered defendant as he was trying to enter the rear door of a house. The entire chase took about fifteen minutes. Simpson immediately confirmed that defendant was the robber, later also identifying him in court at the trial. Lima retraced defendant's route, recovering the gun and the bag.
Defendant's first point, the failure to charge attempted theft, was not raised at trial. Consequently, the plain error rule applies. State v. Adams, 194 N.J. 186, 206-07 (2008); R. 2:10-2. Reversal is thus not appropriate unless the "error possessed a clear capacity to bring about an unjust result." Adams, supra, 194 N.J. at 207 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Moreover, in assessing the effect of the error, we are bound to consider "the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006). But, we must also keep in mind that "[s]o critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error." State v. Martin, 119 N.J. 2, 15 (1990). The judge "must explain the controlling legal principles and the questions the jury is to decide." Ibid. Indeed, "erroneous instructions are almost ...