On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-03-0266.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2009
Before Judges Wefing, Grall and LeWinn.
Defendant David I. Rogers appeals from a judgment of conviction and sentence. He and his co-defendant Barry Pinckney were tried to a jury on charges arising from a robbery committed by Pinckney in a parking lot in Union and during the police chase that followed while defendant drove Pinckney away from the scene. The jury found defendant guilty of second-degree eluding by creating a risk of death or injury, N.J.S.A. 2C:29-2b; third-degree criminal mischief by causing property damage over $2000 to a patrol car, N.J.S.A. 2C:17-3a(1); and third-degree aggravated assault by attempting to cause bodily injury to a police officer performing his duty, N.J.S.A. 2C:12-1b(5). The jury acquitted defendant of possession of a knife with purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4d, but convicted him as an accomplice in the first-degree armed robbery committed by Pinckney, N.J.S.A. 2C:15-1.
The judge sentenced defendant as follows: for first-degree robbery, a term of ten years subject to parole ineligibility and supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; seven years for second-degree eluding; and four years for third-degree criminal mischief and third-degree aggravated assault.*fn1 The sentences are all concurrent, and the appropriate fines, penalties and assessments were also imposed.
We affirm defendant's convictions for eluding, criminal mischief and aggravated assault. We reverse and remand his conviction for first-degree robbery, however, because the court did not resolve a discrepancy between the jurors' findings as announced by their foreperson in court and the verdict sheet, which indicated that the jury found defendant not guilty of first-degree robbery. In addition, we remand for further proceedings on defendant's sentences for eluding, aggravated assault and criminal mischief.
On December 20, 2005, Robert Bantang left his office in Union at about 1:30 a.m. As he loaded files into his car, Pinckney rushed up and pushed him against it. Pinckney held his hands in his pockets, pointed as if he had a weapon and demanded that Bantang give him money. Bantang surrendered his cash.
Pinckney then grabbed the collar of Bantang's sweatshirt and said, "You are going to come with me." At that point, Bantang saw that Pinckney had a knife. Fearful, Bantang struggled with Pinckney and managed to free himself and run away. Bantang looked back and saw Pinckney running in the opposite direction. Keeping Pinckney in sight, Bantang got into his car and followed.
Pinckney entered the rear passenger compartment of a Ford Explorer, which was immediately driven away by a man whom Bantang later identified as defendant. Bantang also saw a second passenger in the front seat. Bantang followed the Explorer and called 911. After relaying the information, Bantang abandoned the chase. Officer Daniel Mitchell of the Union Police Department responded. He saw an Explorer at an intersection controlled by a traffic light. Although the light was red, defendant made a right-hand turn without stopping and traveled toward the patrol car. Officer Mitchell made a u-turn, turned on his lights and siren, and began pursuit.
Defendant drove erratically and did not respond to the officer's signal. At one point, defendant slowed down and one of the occupants got out and ran. When defendant sped off again, Officer Mitchell continued the pursuit. Defendant drove through several red lights and a stop sign before jumping a curb and hitting a telephone pole. In backing away from the pole, defendant drove the Explorer into Officer Mitchell's car, which was damaged but operable.
Defendant continued his flight, and Officers Robert Donnelly and Pietro DiGena, also of the Union Police Department, joined Officer Mitchell in the pursuit. When defendant reached the entrance to Route 78, the Explorer came to rest against a barrier at the entrance to the highway.
Defendant and Pinckney were removed from the car and arrested. Bantang later identified the Ford Explorer as the getaway car, Pinckney as the man who robbed him, and, as noted above, defendant as the driver of the Explorer. The estimate for the cost of repairing the damage to the patrol car was $4565.08.
Defendant raises five issues on appeal:
I. THE JURY INSTRUCTIONS ON ACCOMPLICE LIABILITY DID NOT CONTAIN ANY OF THE CRITICAL LANGUAGE OF STATE V. BIELKIEWICZ, REGARDING THE POTENTIAL LIABILITY OF AN ACCOMPLICE FOR AN OFFENSE LESS THAN THAT OF THE PRINCIPAL, DESPITE JURY QUESTIONS REGARDING THAT VERY TOPIC (NOT RAISED BELOW).
II. NO ONE - NOT THE TRIAL JUDGE NOR ANY COUNSEL - APPEARS TO HAVE NOTICED A DISCREPANCY BETWEEN THE COURT'S COPY OF THE VERDICT SHEET AND THE ROBBERY VERDICT AS ALLEGEDLY ANNOUNCED IN COURT, THEREBY WARRANTING A REMAND TO EXPLORE THE ISSUE (NOT RAISED BELOW).
III. EACH TIME THE JUDGE ASKED THE JURY TO DISTINGUISH BETWEEN DEGREES OF AN OFFENSE, HE FAILED TO ASSIGN A BURDEN OF PROOF TO THAT DECISION; ADDITIONALLY, HE FAILED TO PROVIDE A POSSIBLE VERDICT FOR A LESSER DEGREE OF CRIMINAL MISCHIEF (NOT RAISED BELOW).
IV. THE ANSWER TO THE JURY'S QUESTION ON ATTEMPTED AGGRAVATED ASSAULT WAS INSUFFICIENT TO ANSWER THE QUESTION (NOT RAISED BELOW).
V. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND HE SHOULD NOT HAVE BEEN DENIED THE RIGHT TO HAVE FAMILY ...