On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-08-1210.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Simonelli.
In August 2006, an Ocean County Grand Jury charged defendant with first-degree carjacking, N.J.S.A. 2C:15-2a (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count four); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count five); third-degree theft of an automobile, N.J.S.A. 2C:20-3 (count six); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7b (count seven). Prior to trial, the court severed count seven. The jury found defendant guilty of counts one, two, and six, but not guilty on counts three, four, and five. Following the return of the verdict, the court granted the State's motion to dismiss count seven.
On February 2, 2007, the court denied defendant's motion for judgment of acquittal notwithstanding the verdict, and granted the State's motion to sentence defendant to a discretionary extended term pursuant to N.J.S.A. 2C:44-3a. After finding aggravating sentencing factors, N.J.S.A. 2C:44-1a(3), (6), and (9), and mitigating sentencing factor, N.J.S.A. 2C:44-1b(11), the court sentenced defendant on count one to an extended term of life imprisonment with a sixty-three year period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and on count two to a concurrent twenty-year term of imprisonment with a seventeen-year period of parole ineligibility pursuant to NERA. The court imposed a five-year period of parole supervision upon release on each count and ran the sentences consecutive to a thirty-year term sentence defendant was then serving under a separate indictment. Lastly, the court merged count six with count two, and imposed all appropriate fines and penalties.
On appeal, defendant argues:
SINCE THE COURT FAILED TO INSTRUCT THE JURORS ON THE LESSER-INCLUDED OFFENSE OF RECEIPT OF STOLEN PROPERTY IN ACCORDANCE WITH EYEWITNESS TESTIMONY THAT THE UNMASKED DEFENDANT GAVE WITNESS MILOS KEYS TO THE STOLEN CAR AFTER THE CARJACKING, DEFENDANT'S CONVICTIONS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL (NOT RAISED BELOW).
SINCE THE TRIAL COURT PREVENTED AN EYEWITNESS -- WHO WAS AT LEAST COMPLICIT IN RECEIVING THE STOLEN CAR FROM THE CARJACKING -- FROM ANSWERING COUNSEL'S QUESTION AS TO WHETHER SHE WAS A SUSPECT, AND REPEATEDLY INTERFERED WITH THE QUESTIONING OF WITNESSES INCLUDING CROSS-EXAMINATION, DEFENDANT'S CONVICTIONS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL (PARTIALLY RAISED BELOW).
SINCE THE TRIAL COURT INSTRUCTED THE JURORS ON TWO DISTINCT STATUTORY VERSIONS OF CARJACKING WITHOUT A SPECIFIC UNANIMITY INSTRUCTION, DEFENDANT'S CONVICTIONS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL (NOT RAISED BELOW).
SINCE THE OVERALL IDENTIFICATION INSTRUCTION -- INCLUDING AN EARLIER INSTRUCTION ABOUT THE ATTORNEY GENERAL GUIDELINES -- FAVORED THE STATE'S EVIDENCE AND DID NOT INFORM THE JURORS THAT THE IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE, DEFENDANT'S CONVICTIONS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL[.] (NOT RAISED BELOW).
THE JUDGE REPEATEDLY MISINFORMED THE JURORS THAT THEIR ROLE WAS TO DETERMINE THE "GUILT OR INNOCENCE" OF DEFENDANT, THEREBY REDUCING THE STATE'S BURDEN IN PROVING DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT. (NOT RAISED BELOW).
SINCE THE TRIAL COURT WRONGLY FOUND THAT THE ROCCO PHOTO-ARRAY PROCEDURE WAS NOT IMPERMISSIBLY SUGGESTIVE, THE MATTER AT LEAST SHOULD BE REMANDED FOR A PROPER HEARING IN ORDER TO DETERMINE WHETHER THERE WAS AN INDEPENDENT SOURCE FOR THE IDENTIFICATION. (NOT RAISED BELOW).
THE IMPOSITION OF A LIFE-TERM EXTENDED TERM NERA SENTENCE OF IMPRISONMENT ON THE CARJACKING CHARGE, CONSECUTIVE TO A 30-YEAR NERA TERM OF IMPRISONMENT ON A PRIOR UNRELATED ROBBERY CONVICTION, WAS EXCESSIVE. In a pro se supplemental brief, defendant argues:
THE COMPLAINT WARRANT AND SUPPORTING AFFIDAVIT OF PROBABLE CAUSE DID NOT STATE SUFFICIENT FACTS TO ESTALISH PROBABLE CAUSE FOR THE ISSUANCE OF AN ARREST WARRANT, AND DISMISSAL OF THE COMPLAINT.
THE AFFIDAVIT OF PROBABLE CAUSE FOR ISSUANCE OF ARREST WARRANT THAT WAS SUBMITTED IN SUPPORT OF THE COMPLAINT-WARRANT WAS CONSTITUTIONALLY DEFECTIVE, AND THUS WOULD WARRANT QUASHING OF THE ILLEGAL ARREST WARRANT.
THE DEFENDANT-APPELLANT['S] GUARANTEED RIGHTS AS PROVIDED UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPHS 1 AND 7 OF THE NEW JERSEY CONSTITUTION [WERE] VIOLATED WHEN THERE IS NO BINDING NOR LEGAL LIABILITY FOR THE WARRANT, AFFIDAVIT, INDICTMENT AS TO THE CHARGES CONVICTED.
THE DEFENDANT-APPELLANT['S] FOURTEENTH AMENDMENT RIGHTS GUARANTEED BY THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION AS TO: "DUE PROCESS", "EQUAL PROTECTION OF THE LAW", "DEFENDING LIFE AND LIBERTY" WERE VIOLATED. THE SENTENCING COURT COMMITTED PREJUDICIAL ERROR WHEN IT PERMITTED TO LIST [AND] HEAR THE STATE BASED ON INCOMPLETE INSTRUMENTS LEADING TO A FRAUDULENT INDICTMENT WHICH HAS "HELD" THE DEFENDANT[-]APPELLANT DETAINED AND WRONGFULLY IMPRISONED IN VIOLATION TO ARTICLE I, PARAGRAPH 8, OF THE NEW JERSEY CONSTITUTION.
IN THE EVENT THE REVIEWING COURT AND THE [RESPONDENT STATE] FIND MY POSITION IN ERROR A POINT[-]FOR[-]POINT RESPONSE IN AFFIDAVIT [FORM] WILL BE REQUIRED. IT IS THE INTENT OF THE DEFENDANT[-]APPELLANT TO MOVE IN FULL SETTLEMENT AND CLOSURE OF THE ACCOUNT.
We gather the following facts from the testimony presented at trial. On the evening of June 29, 2002, Jimmy Prochette was driving his 1996 Mercedes motor vehicle in Lakewood Township. As Prochette approached the local bus depot, he noticed Andrea Milos and Tracy Rocco standing in front of a nearby store. Prochette stopped to talk to them. After a brief conversation with the two women, Prochette took Milos for a ride in his car. Rocco stayed behind, eventually making her way to defendant's residence on Center Street. Rocco advised defendant that Milos had left with Prochette in his car "because, you know, he had a Mercedes, and it seemed like he was showing off." Defendant responded that he should rob Prochette. Rocco took the comment as a joke.
According to Milos, she and Prochette proceeded to Prochette's home in Asbury Park and "hung out" for a while.
After a couple of hours, Milos asked Prochette to take her home. Before they left, Milos realized she had left her wallet in Rocco's car and asked Prochette if he would stop to meet Rocco on the way back to her house so she could retrieve the wallet. When Milos called Rocco to set up a meeting place, Rocco informed her she was at defendant's house on Center Street. After hanging up with Milos, Rocco told defendant that Prochette and Milos were on their way there for Milos to retrieve her wallet.
Prochette arrived at defendant's home sometime between midnight and 1:00 a.m., and parked his car along side of Rocco's car, where Rocco was seated in the driver's seat. Milos exited Prochette's car via the front passenger side door and saw defendant standing beside her wearing a ski mask. Even though defendant was wearing the mask, Milos recognized his voice and his clothes. Defendant entered Prochette's car through the open door, pointed a gun at Prochette and demanded the Mercedes. A struggle ensued, and according to Prochette, defendant's gun discharged. Another individual known as "Ray-Ray," reached into the car through the driver's side and grabbed Prochette. Milos became frightened, ran into Rocco's car, and the two sped away. After defendant dragged Prochette from the car, defendant and Ray-Ray assaulted him. The assailants stole Prochette's motor vehicle, $100 in cash, a necklace, and his shirt.
Patrolman Daniel Tworkorski of the Lakewood Township Police Department responded to a call about the carjacking in the vicinity of Ashley Avenue and Center Street. Upon arriving at the scene at about 1:56 a.m., he observed Prochette, shirtless, with a bump on his head and a scraped knee, signaling for help from the roadway. Prochette told Tworkorski that he had been carjacked at gunpoint. He described the perpetrator in the ski mask as a black male, muscular build, between 5'9" and 5'10" in height. Detective Reginald Dalton met Prochette and Tworkorski at Lakewood police headquarters later that morning, where Prochette provided Dalton with the same description of the masked perpetrator that he had given to Tworkorski.
While driving around the vicinity of the carjacking, Milos and Rocco decided to return to defendant's house to confront him about the incident. When they arrived, defendant, Prochette and Prochette's car were gone. Defendant arrived fifteen minutes later, and Milos asked him for the keys to Prochette's car on the pretense that her cousin had a chop shop where she could take the car. Actually, she wanted to return the car to Prochette. Defendant gave Milos Prochette's car keys, informing her it was located in the parking lot of a nearby apartment complex.
Rocco drove Milos to the apartment complex, where they found the car. Milos telephoned Prochette in the hope of returning the car but received no answer. Milos asked Rocco to follow her to Prochette's house in Asbury Park so she could drop the car off, but Rocco refused. Milos and Rocco separated. Milos drove Prochette's car to her aunt's house in Howell Township, but decided not to stay there; instead, Milos drove Prochette's car to a friend's house in Freehold where she spent the night. Rocco, in turn, proceeded back to defendant's house.
As Rocco proceeded toward defendant's house, Dalton was escorting Prochette back to the site of the carjacking in an unmarked police car. As Dalton turned onto Arlington Avenue, Prochette spotted Rocco driving her car. Dalton stopped Rocco; and after speaking with her, Rocco agreed to accompany Dalton to police headquarters. Rocco told Dalton that Milos had taken Prochette's car to her aunt's house in Howell Township. Dalton, having called Milos' aunt, was informed of Milos' location in Freehold.
After Dalton found Milos and Prochette's car in Freehold, they proceeded to the Lakewood Police Headquarters. At the police station, Rocco and Milos told Dalton that the man in the ski mask was known to them as "Father," but they did not know his true name. Rocco described him as approximately 6' to 6'1" tall with a muscular build, around 270 pounds. Milos also described Father as ...