On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-05-0428.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2010 - Decided
Before Judges Kestin and Newman.
A single-count indictment charged defendant, Rodjan D. Caver, with first-degree robbery, N.J.S.A. 2C:15-1. The matter was tried to a jury, which found defendant not guilty of robbery, but convicted him of lesser-included third-degree theft, N.J.S.A. 2C:20-3a. Defendant was sentenced to a four- year prison term with two years of parole ineligibility.
In this appeal from the conviction, defendant raises a single argument:
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT.
Given the limited question presented on appeal, it is not necessary to set out the factual detail of the crime. It suffices to describe the matter as a theft from the person. At a restaurant, in the early morning hours of March 4, 2007, defendant, demanded, with a threat of harm, that the victim turn over his money. The victim relinquished the $24 he had and, upon leaving the restaurant, called 9-1-1, keeping defendant and his cohorts in sight until the police arrived. He identified defendant to the police at the scene.
Defendant's challenge to the jury instructions focuses on a phrase in the charge bearing upon defendant's right to remain silent:
It is the constitutional right of a defendant to remain silent. I instruct you that you are not to consider for any purpose or any manner in arriving at your verdict the fact that the defendant did not testify. Nor should that fact enter into your deliberations or discussion in any manner or at any time. The defendant is entitled to have the jury consider all of the evidence, and he is entitled to the presumption of innocence even if he chooses not to testify. (Emphasis supplied by defendant.)
Defendant argues: "The use of the term 'even' in the last sentence of the charge is so powerful and so damaging that it undermines everything that precedes it." He contends: "Charging that the defendant is entitled to the presumption of innocence 'even' if he does not testify unmistakably and inescapably telegraphs the message that the defendant should have testified.
It tells the jury that, as improbable as it may seem, the defendant should be treated fairly despite his dereliction." Defendant points out additionally: "Indeed, the Model Jury Charge has recently been revised to delete the offending language 'even if' and it has been replaced with the much more neutral phrase 'whether or not he/she chooses to testify."
The same argument was raised before us and rejected in State v. Miller, 411 N.J. Super. 521, 532-33 (App. Div. 2010). No argument made in this matter has sufficient merit to warrant further ...