August 20, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHNNY ROBERTSON, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ZYANAITHA DENARD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-03-0524.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 21, 2010
Before Judges Payne and C.L. Miniman.
Defendants Johnny Robertson (Robertson) and Zyanaitha Denard (Denard) appeal final judgments entered on December 17, 2007, convicting them of second-degree aggravated assault, con- trary to N.J.S.A. 2C:12-1b(1), and false imprisonment, a lesser- included disorderly persons offense, contrary to N.J.S.A. 2C:13- 3, on which an aggregate sentence of six years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, was imposed on Robertson and an aggregate sentence of seven years subject to NERA was imposed on Denard. We affirm.
These are the third and fourth appeals arising out of a joint trial of four defendants charged with committing multiple offenses on September 4 and 5, 2006, in Jersey City. The first two appeals were decided on July 22, 2010. State v. Smith, Nos. A-3612-07 and A-3864-07 (App. Div. July 22, 2010). We summarized the evidence at trial in that opinion as follows:
In September 2006, Dennis Marando (Dennis) lived with his wife Lakeema in Jersey City, New Jersey. Zyanaitha Denard, Lakeema's friend, and Johnny Robertson, Lakeema's cousin, also lived with the Marandos at that time. On September 4, 2006, Dennis was visiting friends in Pennsylvania until approximately 9:00 p.m., at which time he left the Poconos area and drove home to Jersey City, arriving at approximately 10:30 p.m. He intended to pick up some personal items because he was having problems with Denard and Robertson, and he had decided to separate from his wife and vacate the apartment.
Upon arriving at the apartment, Dennis testified that he attempted to call his friends in the Poconos to inform them he arrived home. When he picked up the phone, Denard grabbed it, unplugged it, and threw it at a window. He testified that while Denard was asking him why he was leaving Lakeema, Robertson and Desmond Smith entered the room. Robertson then allegedly said to Dennis, "'You thought you could get away with this. But I think now we got you.'" Dennis testified that the threats continued, culminating with Denard telling Lakeema via a cell phone call that "'We got Dennis here.'" Lakeema allegedly responded, "'Don't let Dennis leave. Don't let him leave until I get there.'" Denard then took Dennis into the bathroom and began questioning him about his separation from Lakeema. Robertson and Smith remained outside the bathroom, where, according to Dennis, they said they "'can't let him out until Keema gets here.'"
Lakeema arrived after Dennis had been in the bathroom for about ten minutes. Dennis said she was "mad" and "angry" and would not let him say anything. Dennis testified that Lakeema first accused him of unspecified conduct, uttering profanities, and then began "punching [him] in [his] face, all over." Denard was still in the bathroom at this time, and Robertson and Smith were attempting to enter. During the struggle, Lakeema demanded $1500 from Dennis; he told her that "it was impossible to do that at that time."
Robertson and Smith then entered the bathroom, and the light was turned off. Dennis testified that "everyone was trying to hit me. I couldn't tell who was hitting me, but I could feel the blows coming from all sides." He was punched in his right eye, which started bleeding. Lakeema said she did not care what happened to Dennis, and Robertson allegedly said, "Why can't we just smoke this nigger and forget about the whole thing?" Dennis could not estimate the number of blows he received and never indicated to police that four individuals assaulted him. He remembered his wife saying to hit him in his bad eye, on which a cornea transplant had previously been performed. He eventually pushed his way out of the bathroom and went outside.
Once outside, Dennis got into the passenger side of his car, and Lakeema, because she had the car keys, got into the driver's seat. Dennis asked Lakeema to take him to the hospital; she responded by saying, "I don't care. That's your problem now." An ambulance then arrived; however, when asked if anyone called for an ambulance, Lakeema responded, "No," and the ambulance left. Dennis did not try to get the ambulance driver's attention.
Dennis then offered to give his assailants the money, and they drove to a local automatic teller machine (ATM). Once they arrived, everyone began looking for his ATM card, which Dennis said was in his jacket in the car trunk. Dennis then ran away from the car toward a Walgreen's, where he informed a security guard that he had been assaulted. After that, he saw a police car pull into a gas station across the street; he informed the police officer about what had transpired and told him that his assailants were in his car. The police officer called an ambulance, and Dennis received medical attention at Jersey City Medical Center (JCMC). He had surgery the next morning to treat the injuries to his right eye, which included a ruptured globe through the cornea and evisceration of the contents of his eye. He underwent a second surgery on the eye on December 13, 2006. Dennis remained blind in his right eye at the time of trial.
In the early morning hours of September 5, 2006, Officer Charles Taveras of the Jersey City Police Department effected a traffic stop of a car matching the description Dennis gave to the police. The car contained Lakeema, Denard, Smith, and Robertson. The four individuals were taken into custody and transported to JCMC to be identified by Dennis. Dennis positively identified them one at a time, and they were then taken to the police station. Lakeema, Smith, Robertson, and Denard were subsequently indicted on charges stemming from this incident. These appeals followed the entry of judgments of conviction.
[Id. at 3-6.]
At the conclusion of all of the evidence, the jury con- victed Robertson and Denard of second-degree aggravated assault and false imprisonment as a lesser-included disorderly persons offense to kidnapping. Robertson was sentenced to six years in prison subject to NERA on the aggravated-assault charge, and Denard was sentenced to seven years in prison subject to NERA on the same offense. They each also received a concurrent six- month sentence on their false-imprisonment offense. This appeal followed.
Robertson raises the following issues for our consideration:
POINT I -- THE JUDGE BELOW ERRED IN ITS JURY CHARGE REGARDING AGGRAVATED ASSAU[L]T, AND THUS THE CONVICTION MUST BE OVERTURNED (NOT RAISED BELOW).
POINT II -- THE SENTENCE IS EXCESSIVE (NOT RAISED BELOW).
Denard raises the following issues for our consideration:
POINT I -- THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL WITH RESPECT TO COUNT III CHARGING SECOND DEGREE AGGRAVATED ASSAULT SINCE THE STATE FAILED TO ESTABLISH A PRIMA FACIE CASE THAT THE DEFENDANT, EITHER AS A PRINCIPAL OR AS AN ACCOMPLICE, CAUSED OR ATTEMPTED TO CAUSE SERIOUS BODILY INJURY TO THE VICTIM.
POINT II -- THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
With respect to a claimed error in a jury charge, we read the charge as a whole; we will not read just the portion alleged as error. State v. Wilbely, 63 N.J. 420, 422 (1973). All that is necessary is that the entire charge be accurate. State v. Thompson, 59 N.J. 396, 411 (1971). Where the defendant fails to object to the charge, a showing of plain error must be made when the defendant claims error on appeal. R. 1:7-2, 2:10-2. Plain error is error "clearly capable of producing an unjust result." R. 2:10-2. In considering a jury charge, plain error is "legal impropriety in the charge prejudicially affecting the substan- tial rights of the defendant and sufficiently grievous to jus- tify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969) (citation omitted), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). However, errors impacting directly on the court's obligation "to assure the jury's impartial delibera- tions upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions . . . are poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979) (citations omitted).
We review the denial of a motion for a judgment of acquit- tal by applying the same standard as binds the trial court. State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Perez, 349 N.J. Super. 145, 151 (App. Div. 2002), rev'd on other grounds, 177 N.J. 540 (2003). That is, we determine "if the evidence is insufficient to warrant a conviction." R. 3:18-1. In State v. Reyes, 50 N.J. 454 (1967), the Supreme Court similarly observed:
More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favor- able inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[Id. at 458-59 (citation omitted).]
Finally, the role of an appellate court in reviewing a sen- tence imposed by a trial judge is limited. State v. L.V., 410 N.J. Super. 90, 107 (App. Div. 2009), certif. denied, 201 N.J. 156 (2010). The court only determines
(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.
[State v. Megargel, 143 N.J. 484, 493 (1996) (citing State v. Roth, 95 N.J. 334, 363-65 (1984)).]
The "reviewing court may not substitute its own judgment for that of the sentencing court." Id. at 493-94 (citing Roth, supra, 95 N.J. at 365). A judge who exercises discretion and complies with the sentencing principles will not be second guessed. Id. at 494 (citing Roth, supra, 95 N.J. at 365).
Thus, the appellate court may modify a defendant's sentence when it is convinced the sentencing judge was "'clearly mistaken.'"
L.V., supra, 410 N.J. Super. at 107 (quoting State v. Jabbour, 118 N.J. 1, 6 (1990)). A judge is "clearly mistaken" where "the facts of th[e] case make the sentence clearly unreasonable so as to shock the judicial conscience." Ibid. (internal quotations and citations omitted).
With respect to Robertson's first point on appeal, we have already examined the jury charge on assault and have concluded that it was entirely correct. Smith, supra, Nos. A-3612-07 and A-3864-07 (slip op. at 31-35). There, defendant Marando argued that the judge did not mold the "instructions so that the jury could understand that, in order for [her] to be an accomplice to the aggravated assault, the intent had to include an attempt to purposely cause, or attempt to cause serious bodily injury (or significant inury) and not to simply purposely engage in assault."
[Id. at 31.]
Defendant Smith claimed that the judge used the wrong model accomplice liability charge because the one he used "was appli- cable to cases where there are no lesser-included offenses, which has no 'language explaining that one defendant can hav[e] a different or lesser degree of culpability than another defen- dant.'" Id. at 32. He urged that the judge thus failed to com- ply with State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993). We rejected both claims of error. Id. at 35.
Here, Robertson also claims that the charge on accomplice liability was incorrect. We see no need to revisit this issue and incorporate our discussion of the charge on aggravated assault and accomplice liability here. Smith, supra, Nos. A- 3612-07 and A-3864-07 (slip op. at 31-35).
With respect to Denard's first point on appeal, she argues that the judge erred in denying her motion for acquittal on the aggravated-assault charge because she did not have the strength to rupture the victim's eye and she only took the victim to the bathroom to question him about the reasons for his separation from his wife, not to assault him. Further, she did not open the door to allow the men to gain access to the bathroom.
Because the men gained access by force, only they had the intent to cause serious bodily injury.
Defendant Smith, too, argued that the judge erred in deny- ing his motion for a judgment of acquittal because the evidence was insufficient to convict him as a principal or even as an accomplice. In deciding the issue, we reviewed the evidence presented on the State's case as follows:
Dennis testified that Smith and Robertson came into the bedroom where Denard was speaking with him. Smith stood by the window; Robertson by the door. Smith told Dennis they were "going to beat [him] up and [Smith was] going back to the Heights and nobody's going to find him." After Denard spoke to Lakeema, Lakeema told her not to let Dennis leave until she got there. Denard took Dennis to the windowless bathroom and closed the door, while Smith and Robertson stood outside the bathroom door and talked to each other, saying, "We can't let him out until Keema gets here."
Dennis was in the bathroom for about ten minutes before Lakeema arrived, and all the while Smith and Robertson were outside the door. Lakeema then went into the bathroom. Lakeema was raging, angry, hitting Dennis, and screaming profanities. Lakeema was punching his face and elsewhere. Dennis got up from the toilet seat and blocked the door while Smith and Robertson were trying to break the door to get into the bathroom. Lakeema then started to demand that Dennis give her $1500; he agreed, but said he could not get it that late at night. By then Smith and Robertson broke into the bathroom, someone turned out the light, there was a big struggle, and everyone was trying to hit Dennis. Before he knew what was happening, he was in severe pain and his right eye was bleeding. The beating continued for five to ten minutes. Dennis finally pushed his way out of the bathroom, although Smith kept pushing him back. He continued to struggle with the four defendants all the way out of the apartment and down to the street while he was begging to be taken to the hospital. He managed to get into the passenger seat of his car with his wife in the driver's seat because she had the keys. Robertson and Smith kept trying to get into the car, but Dennis locked his door. They were in the car for almost thirty minutes, while Dennis begged to be taken to the hospital. He finally agreed to get them money so they would let him go. Lakeema's three co-defendants got into the car, and Smith drove everyone to an ATM. They would not allow Dennis to withdraw the money, demanding his card and access code. Lakeema and Robertson got out of the car to retrieve his card from his jacket in the trunk, but could not find it. Then Smith and Denard went to help look for it and Dennis escaped. Robertson chased him unsuccessfully.
This testimony was more than sufficient to establish beyond a reasonable doubt that Smith was guilty, as a principal or accomplice, of using force upon Dennis in the course of attempting to commit a theft, contrary to N.J.S.A. 2C:15-1a. It also establishes beyond a reasonable doubt that Smith was guilty, as a principal or an accomplice, of unlawfully removing Dennis from his residence for the purpose of facilitating the commission of a robbery and failed to release him unharmed, contrary to N.J.S.A. 2C:13-1b. Further, the evidence was sufficient to prove beyond a reasonable doubt that Smith attempted to cause serious bodily injury beyond a reasonable doubt, contrary to N.J.S.A. 2C:12-1b(1). Finally, the evidence establishes beyond a reasonable doubt that Smith conspired with his three co-defendants to commit the aforesaid crimes, contrary to N.J.S.A. 2C:5-2. There is no merit to Smith's arguments to the contrary.
[Id. at 28-31.]
Just as we found the evidence sufficient to submit the issue of Smith's guilt to the jury, it was equally sufficient to submit the issue of Denard's guilt to the jury. She was in the bathroom with the victim, whose wife exhorted defendants to injure the victim's eye, and the victim testified that everyone was trying to punch him. Denard was simply not entitled to a judgment of acquittal.
Last, we consider the sentences imposed on each defendant.
With respect to Robertson, the judge found the following aggra- vating factors pursuant to N.J.S.A. 2C:44-1a: (1) ("[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner"); (2) ("[t]he gravity and seriousness of harm inflicted on the victim, includ- ing whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable . . ."); and (9) ("[t]he need for deterring the defendant and others from violating the law"). The judge then found the fol- lowing mitigating factors under N.J.S.A. 2C:44-1b: (7) ("[t]he defendant has no history of prior delinquency or criminal activ- ity or has led a law-abiding life for a substantial period of time before the commission of the present offense"); (13) ("[t]he conduct of a youthful defendant was substantially influ- enced by another person more mature than the defendant"); and remorse.
Robertson contends the judge erred in finding aggravating factor (1) because an element of aggravated assault is serious bodily injury. Additionally, there was no evidence that he actually heard the victim's wife exhort everyone to injure the victim's right eye, to "black it out." He further argues that the victim is not totally blind as a result of the assault.
He is, of course, entirely correct that an element of the crime cannot be double counted under this aggravating factor. State v. Jarbath, 114 N.J. 394, 404 (1989). However, we are satisfied that the judge did not transgress Jarbath. The delib- erate targeting of the victim's right eye, knowing that it was weakened, transcended the elements of aggravated assault and rose to the level of an especially heinous and cruel injury, one which in fact left the victim blind in his right eye, and was entirely appropriate under State v. Kromphold, 162 N.J. 345, 356-58 (2000), and State v. O'Donnell, 117 N.J. 210, 217-18 (1989). The same observation applies to aggravating factor (2), which Robertson also disputes, because the permanent loss of an eye is a grave and serious harm from which the victim has no possible recovery and Robertson knew of the weakness of the eye before any injury to it was inflicted. State v. Colella, 298 N.J. Super. 668, 676 (App. Div.), certif. denied, 151 N.J. 73 (1997). The judge did not abuse his sentencing discretion when he imposed a term of six years on the aggravated-assault conviction.
Finally, we consider Denard's claim that her sentence was manifestly excessive. She contends that the judge abused his sentencing discretion when he determined that he could not sen- tence her as a third-degree offender because the aggravating factors substantially outweighed the mitigating factors, a find- ing that precluded sentencing Denard as a third-degree offender.
If she does not prevail on this claim, she also contends that imposition of a seven-year term was itself an abuse of discretion.
Denard, like Robertson, claims that aggravating factors (1) and (2) were inappropriate, but we are satisfied that they were correctly applied. She then argues that, although the judge properly found mitigating factor (7) under N.J.S.A. 2C:44-1b, that she had led a law-abiding life, he should also have found remorse and contrition. Those are not statutory mitigating factors, but the judge did consider that Denard showed remorse.
Denard also claims that she should have been given the benefit of mitigating factors (8) ("[t]he defendant's conduct was the result of circumstances unlikely to recur") and (9) ("[t]he character and attitude of the defendant indicate that [s]he is unlikely to commit another offense"). Finally, because she was the mother of an eleven-year-old child at the time of sentence, she urges that the judge should have found mitigating factor (11) ("[t]he imprisonment of the defendant would entail excessive hardship to [her] dependents"). Had the judge found these mitigating factors, she urges that justice would have demanded that she be sentenced as a third-degree offender under N.J.S.A. 2C:44-1f(2) because the mitigating fac- tors would have substantially outweighed the aggravating factors and justice would have demanded a downgrade, citing Megargel, supra, 143 N.J. at 498-502, or at the very least a minimum second-degree sentence.
Of course, we have already found that aggravating factors (1) and (2) were appropriate here and thus consider only the alleged failure to find all applicable mitigating factors. As to mitigating factor (8), the judge determined that he would not speculate as to whether the circumstances were likely to recur. In this respect, we note that defendant had previously been arrested eight times and had been charged with two prior assaults. In all, she had four disorderly persons convictions for simple assault, wrongful impersonation, taking merchandise, and hindering the apprehension of another. We find no abuse of discretion in the judge's determination that mitigation factor (8) was not applicable. We are equally satisfied that the judge's rejection of mitigating factor (9) was entirely appropriate.
The judge did not find mitigating factor (11), which conclusion is entirely supported by the evidence. Denard's son is in the custody of his father pursuant to court order.
Although her son undoubtedly misses his mother, there is nothing to distinguish the interruption of their relationship from that of any other parent who has been incarcerated. As a consequence, we find no abuse of discretion in this respect.
Finally, the sentence defendant received was slightly below the middle of the range for a second-degree offense even though the aggravating factors substantially outweighed the mitigating factors. It can hardly be considered excessive.