On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1342.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and Messano.
Defendant Quinn M. Latney and his co-defendant Darrell Foote, also known as Darrell Smalls, were indicted and charged with robbery while armed with a deadly weapon, a crime of the first degree, N.J.S.A. 2C:15-1, and possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e). Foote pled guilty. Defendant was also charged with theft, N.J.S.A. 2C:20-3. The charge of theft was based on a separate incident in which defendant stole a Jaguar from a car dealership; defendant pled guilty to that count of the indictment prior to trial.*fn1
The jury found defendant guilty of first-degree robbery and possession of an imitation firearm for an unlawful purpose. The judge merged defendant's convictions and sentenced him to a nineteen-year term of imprisonment subject to periods of parole ineligibility and parole supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. In addition, the judge imposed a $100 VCCB penalty, a $75 SNSF assessment, a $30 LEOTEF penalty, a $250 fine and a $210 restitution obligation.
Foote was the State's main witness at trial. At about 2:00 a.m. on June 20, 2005, defendant drove a Jaguar into a Mobil gas station in Union. A young woman named Tah was his front-seat passenger and Foote was in the back seat, where he had fallen asleep. Defendant told Tah to ask the attendant, Chambas, for $20 worth of gas. Chambas attempted to comply but came back to say that the car would only hold $10.50 worth. Defendant handed Foote a toy gun and told him to "get" the attendant. Foote got out of the car and brandished the toy. He advised Chambas, "You know what time it is." Foote explained that this statement was a direction for Chambas to give him everything that he had.
Chambas appeared shocked and put up his hands, but he then reached into his pocket and gave Foote $210. Once Foote was back in the car, defendant sped off. After buying something to eat, Foote and defendant divided the money. Defendant received about $90.
Evidence establishing that the Jaguar was stolen was not introduced at trial, but two or three days before the robbery, a dealership in Montclair had reported the Jaguar stolen. The State did, however, introduce evidence establishing that the Jaguar did not have a front license plate. The State also presented evidence that on June 21, 2005, Detective Calvin Anderson of the East Orange Police Department saw the Jaguar. Defendant was driving, and he was speeding. When the detective saw the car, officers in other police cars were pursuing it. Subsequently, defendant crashed into a police car and was arrested. Foote identified a photograph of the car after the crash as depicting the car defendant drove to and from the gas station.
A videotape retrieved from the Mobil station by the state trooper who responded to the scene on the day of the robbery depicted the robbery and the gun. It did not show the driver of the Jaguar. A video from a surveillance camera at a McDonald's taken days before the robbery showed defendant in the Jaguar. At the time of trial, the State was unable to locate Chambas or Tah. Thus, the only witness to the crime was Foote.
Defendant appeals and raises two issues. Both claims are objections to the jury instructions.
I. BECAUSE THE COURT IN ITS JURY INSTRUCTIONS ERRONEOUSLY SUGGESTED THAT DEFENDANT COULD ONLY BE FOUND GUILTY OF THE LESSER-INCLUDED OFFENSE OF SECOND-DEGREE ROBBERY IF HE WAS NOT ACTING AS FOOTE'S ACCOMPLICE WHEN FOOTE COMMITTED THE ...