On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-03-00429.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Parrillo, Yannotti and Espinosa.
In these back-to-back appeals consolidated for purposes of this opinion, co-defendants Milton Munroe and Roland Simeon appeal from their convictions, after jury trial, for second-degree robbery, N.J.S.A. 2C:15-1, and second-degree conspiracy, N.J.S.A. 2C:5-2, arising from separate instances on the same evening wherein two victims were attacked and robbed. For defendant Simeon, the court imposed two consecutive seven-year terms for the two robberies of which he was found guilty, subject to the No Early Release Act's (NERA) eighty-five percent parole ineligibility period, N.J.S.A. 2C:43-7.2, and merged the conspiracy conviction. For defendant Munroe, the court merged the conspiracy conviction with his singular robbery conviction, and sentenced him as a third-degree offender to a three-year term, subject to NERA. Appropriate fees and penalties were also imposed for both defendants. As noted, both defendants appeal. In addition, the State cross-appeals from the trial court's decision to downgrade Munroe's sentence to that of a third-degree offender. For the following reasons, we affirm both judgments of conviction, except the sentence imposed on Munroe, which we vacate and remand for resentencing.
According to the State's proofs, around 2:15 p.m. on January 20, 2006, then juvenile A.A., Munroe and brothers Bruno and Roland Simeon bought beer at a local liquor store in Edison and played football for about thirty minutes before going to the brothers' mother's home, where they played video games. Soon after, Mikiel Adl arrived at the house and the group retreated to the parking lot, where Adl suggested that the men commit a robbery. The others joined in this conversation.
The men all entered A.A.'s car and went to get more beer. On the way back from the liquor store, around 6:00 p.m., they spotted Christopher Wozniak and his girlfriend, Julia Carey, walking down Isabelle Street towards the Menlo Park Mall, where the couple intended to see a movie at the cinema. Wozniak and Carey, however, never reached the mall. As they were walking through the parking lot of a nearby Target, A.A.'s car approached them and stopped. A.A. pulled into a parking space and Adl and the Simeon brothers exited the vehicle.
Adl, a "white or Hispanic male . . . wearing a red hoodie . . . and [holding] a can of beer," approached Wozniak and spoke to him as if Adl knew him. By then, all three men had surrounded Wozniak and Carey, and one of them called Wozniak "Chris." Adl gave Wozniak a hug and asked him where the "weed was at," to which Wozniak replied that he had "no idea" and "just got out of jail." When Wozniak extended his hand to one of the Simeon brothers to shake it, Adl punched him in the nose. Wozniak fell to the ground and the three men began kicking him, stopping only momentarily to demand his wallet. When Wozniak refused to surrender his wallet, the men resumed their attack. Eventually, Wozniak dropped his wallet on the ground.
At some point during the assault, Carey tried to intervene on behalf of her boyfriend; however, Roland Simeon pushed her against a nearby car and told her to "be cool." Someone, exiting either the apartment building or the car, approached the three men beating Wozniak. Noting the men's distraction, Wozniak and Carey seized the opportunity to run to the Target store a short distance away, where a security guard summoned an ambulance to take Wozniak, bleeding and in pain, to the hospital. When Wozniak arrived at the hospital at 8:30 p.m., his face and torso were bruised, he could not urinate, the middle finger of his left hand was broken, and he could not walk because of the pain. Medical personnel put a splint on the finger and conducted tests to determine the extent of his injuries.
Meanwhile, the robbers left the scene. They divided the money taken from Wozniak's wallet, threw the wallet out of the window of A.A.'s vehicle near Target, and returned to the Simeons' house, where they drank more beer in the parking lot. At that point, Adl said he wanted to go out to eat and also suggested committing another robbery, to which none of the men objected. The group drove to Burger King on Oaktree Road, after which they drove around until about approximately 8:00 p.m., when they spotted Vinodh Chandraskaran, who was walking home from the Metropark train station.
At Adl's direction, A.A. stopped the car and Adl, Munroe, and the Simeon brothers exited the vehicle. The men approached Chandraskaran and demanded his wallet. When Chandraskaran did not respond, they hit him and knocked him to the ground. They then took his wallet and cellular phone from his pocket before driving off to Taco Bell.
All five individuals were eventually apprehended. A.A.'s delinquency charge was resolved in juvenile court and he testified on behalf of the State at the joint trial of co-defendants Roland Simeon and Munroe. Bruno Simeon and Adl pled guilty and Adl testified on behalf of Munroe. Crediting the State's account, the jury convicted Roland Simeon of the two robberies and Munroe of one of them.
On appeal, both defendants argue, for the first time, that the court committed reversible error by inadvertently omitting a portion of the model jury charge on second-degree robbery referencing one of its requisite elements. In addition, defendant Simeon argues, also for the first time, that the court failed to instruct the jury on the limited admissibility of the guilty pleas by Adl, Bruno Simeon and A.A. Simeon also contends that the court erred in denying his mistrial motion and that his sentence is unduly excessive. Lastly, defendant Munroe argues that he was denied a fair trial by prosecutorial misconduct and willful failure to provide a summary of his statements against interest in discovery. We first address defendants' joint issue.
The instant indictment charged defendants with alternative versions of second-degree robbery: the defendants were alleged to have used force (N.J.S.A. 2C:15-1(a)(1)); to have inflicted bodily injury (N.J.S.A. 2C:15-1(a)(1)); or to have placed the victims in fear of immediate, bodily injury (N.J.S.A. 2C:15-1(a)(2)). Defendants now complain for the first time that the court failed to adequately instruct as to the third alternative. We find no error, much less prejudicial error, in the court's jury charge.
When the judge charged the jury, he read the language of the robbery counts:
[I]n the course of committing a theft, the defendants used force upon [the victim] and/or inflicted bodily injury upon [the victim] and/or purposely put [the victim] in fear of immediate bodily injury.
The judge then gave the following charge on second-degree robbery:
Now the part of the statute on which this indictment is based reads as follows: A person is guilty of robbery if, in the course of committing a theft he, number one, knowingly inflicts bodily injury or uses force upon another person or purposely puts that other person in fear of immediate bodily injury.
So in order to find the defendant guilty of robbery the State is required to prove each of the following elements beyond a reasonable doubt: Number one, that the defendant was in the course of committing a theft. Two, that while in the course of committing the theft he knowingly inflicted bodily injury or used force upon another person or purposely put another person in fear of immediate bodily injury. [(emphasis added).]
After providing definitions of "in the course of a theft," "theft," "purpose," and "bodily injury," the judge instructed:
In order to find the defendant guilty of robbery you must be unanimous that the defendant, either defendant[,] used force against[,] in Count 2[,] Vinodh Chandraskaran and[,] in Count 3[,] Christopher Wozniak. In other words, if you find that the defendant[,] used force but do not unanimously agree that he used force against Mr. Wozniak or Mr. Chandraskaran, then the State has failed to prove the existence of force beyond a reasonable doubt or defendant purposely put another in fear of immediate bodily injury. [(emphasis added).]
Further, during jury deliberations, the jury asked for a definition of robbery as compared to theft. The trial court again clearly and plainly instructed the jury on this matter:
In order to find the defendant guilty of robbery you must be unanimous that the defendant used force, force against[,] in Count 2[,] Mr. Chandraskaran, [and in] Count 3[,] Christopher Wozniak. In other words, if you find that the defendant used force but do not unanimously agree that he used force against one of those or both of those victims, then the State has failed to prove the existence of force beyond a reasonable doubt or to find the defendant guilty you must be unanimous that the defendant purposely put another person in fear of immediate bodily injury. . . . And the phrase bodily injury means physical pain, illness or any impairment of the physical condition of another, although no bodily injury need to have resulted. The prosecution must prove that the defendant purposely put the victim in fear of such bodily injury.
The other thing is, or course, that he knowingly inflicted bodily injury or used force upon another person or purposely put the other person in fear of immediate bodily injury, so it is one of those three things or more than one[;] I guess there will be at least one of those three things unanimously.
We are satisfied from these multiple and repeated iterations that the jury was adequately and properly instructed as to all essential elements of second-degree robbery, including the "threatened another with or purposely put another in fear of immediate bodily injury" version of robbery. But even if the court's explanation of this third alternative was less than clear, we perceive no resultant prejudice to defendants. Here, there was sufficient evidence supporting alternative methods by which defendants committed second-degree robbery, either by inflicting bodily injury or knowingly using force upon the victim, and the jury obviously found defendants committed the requisite acts. We, therefore, fail to discern how defendants were prejudiced by a jury instruction that may not have otherwise clearly explained a third alternative by which those same acts of defendants constituted second-degree robbery. On the contrary, any such omission most likely would have worked to the advantage of defendants, not the State.
The harmlessness of the alleged error is perhaps best evidenced by defense counsel's complicity in the charge, as the failure to object suggests that, in context, the charge appropriately conveyed the necessary direction. State v. Wilbely, 63 N.J. 420, 422 (1973). Thus, "[b]ecause [the] defendant did not object to the jury charge before the jury retired to deliberate," this court should "reverse only if the failure to charge the jury" on the now-requested subject matter "was plain error 'clearly capable of producing an unjust result,'" State v. Noble, 398 N.J. Super. 574, 596 (App. Div.) (quoting R. 2:10-2), certif. denied, 195 N.J. 522 (2008), "such that a reasonable doubt is raised 'as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Brims, 168 N.J. 297, 306 (2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). And in determining plain error, "[t]he charge to the jury must be read as a whole . . . ." State v. Adams, 194 N.J. 186, 207 (2008).
Thus, even assuming the jury charge may have been somewhat unclear as to the third alternative method of committing second-degree robbery, the error did not lead the jury to a result it otherwise might not have reached. There was ample evidence to support convictions for second-degree robbery based upon the force used and the infliction of bodily injury, such that the alternative charge for the "purposely put another in fear of immediate bodily injury" version of robbery was superfluous and any lack of clarity therein utterly harmless.
Defendant Simeon asserts error in the trial court's failure to give a limiting instruction concerning Mikiel Adl's guilty plea and A.A.'s juvenile adjudication. Specifically, Simeon contends that while the court properly instructed on the effect of these adjudications on witness credibility, it failed to charge, in accordance with the revised model jury charges and State v. Stefanelli, ...