On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-11-1273.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2010
Before Judges Fisher, Sapp-Peterson and Espinosa.
Defendant appeals from his sentence and convictions for robbery, N.J.S.A. 2C:15-1 (count one); aggravated assault-serious bodily injury, N.J.S.A. 2C:12-1(b)(1) (count two); and aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count three). We affirm.
At approximately 1:30 a.m. on August 11, 2005, Jose Hercules (Hercules) was walking up the driveway to his home when he was attacked by three or four armed men whom he was only able to describe as "black" with long hair. They grabbed him by the neck, threw him against a nearby fence and then asked him for his money. Hercules said "okay, okay" and reached for his wallet but before he could give them anything, the men hit him on the head and stabbed him in the back. He fell to the ground and remained there, face down, until the attack ended a few minutes later, when the men left without taking his wallet.
Bruised and bleeding from the mouth and multiple stab wounds, Hercules got up and ran toward a tool shed on his property. He saw one of his attackers in the driveway, squatted down with a knife. Hercules grabbed a machete from the shed and chased after the man, who ran. As Hercules began to give chase, there were other men standing at the end of the driveway, who also ran from him.
Hercules's brother, Geovani, arrived home from work then to see "four African-American guys" coming from his driveway and then saw his brother, running, bleeding and holding a machete. His brother appeared scared and angry and was yelling at guys who were leaving. Geovani asked what happened and Hercules quickly explained that he was robbed and assaulted. Geovani got out of his car and joined his brother in pursuit of the four men, who were headed toward a nearby park.
The brothers caught up with the men, who had gotten into a car that they were unable to start. When the men saw Hercules approaching, they warned him, "Don't come close. Don't come close. We have guns." Unfazed, Hercules ran up to the car and smashed the rear windshield with his machete. Immediately, the passenger-side door flung open and three of the men ran to a nearby wooded area. Defendant, however, was trapped in the back seat because the front passenger seat failed to slide forward.
Geovani called the police and the two brothers waited next to the driver's side of the car. Approximately five minutes later, defendant was able to escape from the car through the passenger side door. Hercules and Geovani followed him as he ran toward a nearby river. When defendant jumped into the river, Hercules and Geovani were able to corner him as they again waited for the police to arrive. Defendant exclaimed, "it wasn't me, it was the others."
About twenty-five minutes later, Officer Terrance McDonald and another policeman arrived at the park. Geovani ran to him, calling, "Help, help, my brother's been assaulted, robbed."
McDonald left his police cruiser and followed Geovani to the river, where he found defendant wading in the water with Hercules standing over him on dry land. McDonald arrested defendant and transported him to the station for processing.
A knife was recovered from the automobile with the destroyed windshield and submitted to the State Police Laboratory for forensic analysis. Although no fingerprint evidence was found, a DNA analysis of fluids found on the knife matched Hercules's blood.
Defendant was indicted on the following charges: first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count four); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five).
Defendant did not testify at trial.*fn1 During the trial, the court granted the State's motion to dismiss count four, alleging terroristic threats. The jury acquitted defendant on count five and convicted him of the remaining charges.
At sentencing, the court merged count three into count two and imposed the following sentences: on count one, ten years with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a five year period of parole supervision and, on count two, a concurrent sentence of seven years with an eighty-five percent parole disqualifier pursuant to NERA, and appropriate fines and penalties.
In this appeal, defendant presents the following issues:
THERE WAS INSUFFICIENT EVIDENCE FOR DEFENDANT'S ROBBERY CONVICTION, WHERE IT WAS UNDISPUTED THAT THE ALLEGED VICTIM'S ASSAILANTS DID NOT TAKE, OR EVEN ATTEMPT TO TAKE, ANYTHING FROM THE VICTIM. (NOT RAISED BELOW).
THE TRIAL COURT FAILED TO GIVE CLEAR, ACCURATE, AND COMPLETE JURY INSTRUCTIONS ON THE ROBBERY CHARGE. (NOT RAISED BELOW).
A. THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY THAT DEFENDANT "ABANDONED" A THEFT ATTEMPT DURING THE ASSAULT, WHEN THE ALLEGED VICTIM DID NOT COMPLY WITH THE DEMAND FOR MONEY, WHICH STATEMENT WAS UNTRUE AND WHICH HAD THE EFFECT OF DIRECTING A VERDICT AGAINST DEFENDANT ON "ATTEMPTED THEFT."
B. THE TRIAL COURT FAILED TO GIVE THE COMPLETE CHARGE ON ROBBERY, OMITTING THE ENTIRE INSTRUCTION FOR ONE OF THE ALTERNATIVE BASES FOR ROBBERY.
C. THE TRIAL COURT FAILED TO GIVE SUFFICIENT INSTRUCTION ON "ATTEMPTED THEFT," ESPECIALLY WHERE ATTEMPTED THEFT WAS SUBMITTED TO THE ...