February 2, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HAJES K. RABAIA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-11-2606.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Parrillo and Yannotti.
Defendant Hajes K. Rabaia was tried before a jury and found guilty of second-degree robbery, contrary to N.J.S.A. 2C:15-1(a)(1). The court denied defendant's motion for a new trial and sentenced him to an extended term of fifteen years of incarceration with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction dated June 3, 2008. We affirm.
At the trial, the State presented evidence which established that on July 6, 2007, defendant and Naterlal Desia (Desia) were at a casino in Atlantic City. Desia was seated at a three-card poker table. Defendant was observing Desia play from a distance of about three feet. Desia won about $10,000. Desia and defendant left the gaming area and proceeded to the area where wagering chips are exchanged for cash. Defendant cashed out twenty-eight dollars. Desia cashed out $9800 and took the remaining $200 in chips.
Shortly thereafter, a casino security officer observed defendant and Desia "tussling on the floor" near the restroom. Desia, who was seventy-two years old at the time, was holding onto defendant's shirt while defendant tried to get away. Desia told the security officer that defendant had taken his money.
Several security officers arrived at the scene. One testified that he observed defendant trying to put on a torn shirt and that both men were breathing heavily. The officers took Desia to a security room on the fourth floor. An officer tried to escort defendant to the security room. According to the security officer, defendant pushed him and ran down a ramp. The officer said that defendant did not get very far because he tripped. Defendant was taken away. He was searched and found in possession of $10,000 in cash.
Desia testified that he did not know defendant. He said that he had not conversed with him, and did not place any bets for him. Desia stated that he did not want defendant to come to the restroom with him. He said that defendant entered the restroom, grabbed him from behind, took the money out of his pocket, and then hit him, causing his glasses to fall off. Desia grabbed defendant's shirt to stop him from taking his money.
Defendant told a different story. He said that he met Desia at the poker table. He stated that he needed money to settle a court case. Defendant stated that he gave Desia $200 in chips to play for him. Defendant said that when Desia won $4800 in one hand, he and Desia began to jump up and down in excitement. Defendant could not, however, explain why the security videotapes did not show this.
Defendant stated that he expected to get half of Desia's winnings. They went together to the cashier, and Desia allegedly told the cashier that $200 of his winnings belonged to defendant. Defendant and Desia went to the restroom, where they argued about splitting the money. According to defendant, Desia pushed him against the wall. At that point, the money fell out of Desia's pocket and his glasses fell to the floor.
Defendant grabbed the money. Desia started screaming. Defendant said that he and Desia agreed that defendant would keep the money in his pocket, each would get $200 to play, and they would play until defendant had to leave. Defendant stated that, when they left the restroom, there were ten people in the area. Defendant testified that Desia got nervous and said that he beat him and took his money. Defendant denied hitting or touching Desia.
Defendant also testified that, when the security officer arrived, he asked him for a nurse because he had injured his back in the altercation. Defendant said that the officer refused his request. He stated that he got mad at the officer but said that he was not "going to run away."
On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT ERRED IN FAILING TO CHARGE SIMPLE ASSAULT AS A LESSER OFFENSE OF ROBBERY WHERE ASSAULT WAS CLEARLY INDICATED IN THE RECORD AND THERE WAS A QUESTION AS TO WHETHER DEFENDANT WAS ENGAGED IN A THEFT AT THE TIME HE COMMITTED THAT OFFENSE. (Not Raised Below).
THE TRIAL COURT ERRED BY GIVING THE WRONG ALTERNATIVE OF THE MODEL CHARGE ON FLIGHT AND IMPERMISSIBLY EXPANDING THE SCOPE OF THE CHARGE TO INCLUDE "ATTEMPTED FLIGHT." (Partially Raised Below).
A. THE DEFENDANT'S TESTIMONY SUGGESTED AN EXPLANATION FOR HIS ALLEGED DEPARTURE FROM THE SCENE. THEREFORE, THE JUDGE SHOULD HAVE GIVEN THE ALTERNATIVE OF THE MODEL FLIGHT CHARGE THAT DEALS WITH SUCH A SCENARIO. (Partially Raised Below).
B. THE TRIAL COURT ERRED IN EXPANDING THE SCOPE OF THE MODEL JURY CHARGE ON FLIGHT TO INCLUDE "ATTEMPTED FLIGHT" AS EVIDENCE FROM WHICH THE JURY COULD INFER CONSCIOUSNESS OF GUILT.
THE TRIAL COURT ERRED, TO DEFENDANT'S PREJUDICE, IN DENYING A MISTRIAL, OR SUFFICIENT INQUIRY OR REMEDIATION CONCERNING AN INCIDENT IN WHICH THE DFENDANT EVIDENTLY WAS SEEN BY JURORS WHILE IN HANDCUFFS AND SHACKLES. U.S. CONST., AMEND[.] XIV, N.J. CONST., ART. 1, PAR. 10.
IN LIGHT OF THE FACT THIS WAS DEFENDANT'S FIRST CONVICTION FOR AN INDICTIBLE OFFENSE INVOLVING VIOLENCE AND DEFENDANT HAD NEVER BEEN SENTENCED TO STATE PRISON BEFORE, THE FIFTEEN-YEAR EXTENDED TERM SENTENCE WAS EXCESSIVE AND APPEARS TO HAVE BEEN IMPROPERLY BASED ON THE TRIAL JUDGE'S PERSONAL OPINIONS OF DEFENDANT'S PERSONALITY, LIFESTYLE AND CONDUCT.
We have considered defendant's arguments in light of the record and the applicable law. We conclude for the following reasons that defendant's arguments are entirely without merit.
Defendant first argues that the trial court erred by failing to charge the jury on simple assault as a lesser-included offense of robbery. We disagree.
Where, as here, a defendant did not request a charge on a lesser-included offense, the court is nevertheless required to provide the instruction to the jury if the instruction "is 'clearly indicated' in the record." State v. Taylor, 350 N.J. Super. 20, 38 (App. Div.), certif. denied, 174 N.J. 190 (2002). A court is not, however, obligated to "sift meticulously through the record in search of any combination of facts supporting a lesser-included charge[.]" State v. Denofa, 187 N.J. 24, 42 (2006). A charge is required when "the evidence is jumping off the page[.]" Ibid.
Defendant contends that a charge on assault was required in this case because the evidence "clearly indicated" that defendant assaulted Desia and committed a theft and the theft took place only after the assault had been completed. Defendant states that he argued with Desia in the casino restroom after Desia purportedly breached the agreement over the gambling winnings, and struck Desia during that argument. Defendant says that he did not have any intention of stealing Desia's money until it unexpectedly fell out of Desia's pocket.
The record does not support this argument. At trial, defendant testified that he never touched Desia. On the other hand, Desia testified that defendant grabbed him from behind, took the money in his pocket and then hit him, causing his glasses to fall off. Thus, the evidence did not "clearly indicate" that defendant's assault upon Desia was completed before he took Desia's money.
Next, defendant argues that the trial court's instruction on flight was erroneous. Defendant contends that the court erred by failing to give the version of the instruction that applies where a defendant offers an explanation for leaving the scene. He also contends that the court erred by "expanding the scope" of the charge to include "attempted flight." Again, we disagree.
As stated previously, defendant testified that he did not attempt to flee when he was detained by the casino's security officer. At the charge conference, defense counsel argued that the court should not instruct the jury on flight. Counsel stated that it was defendant's position "that there was no flight." Counsel also stated that he wanted flight charged as set forth in the model charge. The court instructed the jury as follows:
Now, there's been testimony and there's been evidence supplied to you on video from which you may infer the Defendant fled shortly after the alleged commission of the crime. The Defendant denies any flight or attempted flight. The question of whether the Defendant attempted to flee after the commission of the crime is another question of fact for you. Mere departure from a place, where a crime has been committed, does not constitute flight. If you find, however, that the Defendant, fearing an accusation or arrest would be made against him on the charge involved, took refuge in flight or attempted for the purpose of evading the accusation or arrest on the charge, and you may consider such flight in connection with all the other evidence in the case as an indication of proof of consciousness of guilt. Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving or attempting to leave was to evade accusation or arrest for the offense charged in the indictment.
Defense counsel did not request the version of the charge that is given when a defendant admits that he fled the scene but offers an explanation for his or her departure. Moreover, on cross-examination, defendant testified:
Q. Now, what happened just there?
A. I asked him for a nurse. I have too much pain in my back. I ask[ed] him for a nurse more than three, four times. I asked him for the nurse and he said no, no, no. I can't get you nobody now. You look like you are drunk.
Q. You ask him for a nurse and because h didn't get you a nurse because your back hurt, you pushed him over and try to run away?
A. Run away? I wasn't running away. I wasn't going to run away.
Q. What were you doing?
A. I was going with him to the nurse.
Q. You were going to run away to see the nurse?
A. Yes. I ask him for a nurse. He refuse to get me a nurse. He said you got to hold him. You got to hold him. I was mad at him because -
Q. Well, it looks like you're trying to run away.
A. I wasn't going to run away.
Q. What were you going to do?
A. I got mad at him. I was upset.
Q. You got mad at him and you pushed him down and it looks like you ran down the ramp. What were you going to do after you pushed him down?
A. I wasn't running away. I was upset with him because he doesn't [sic] want to get met the nurse. I asked him -
Q. I understand that.
Q. Why not just push him down? Why did you run down the ramp?
A. I wasn't running.
In light of this testimony, the trial court cannot be faulted for accepting defense counsel's assertion that it was defendant's position that he had not fled the scene and he was not offering any explanation for flight.
Furthermore, even if the court erred by failing to interpret defendant's testimony as providing an explanation for attempting to flee the scene, the error does not rise to the level of plain error, that is, an error clearly capable of producing an unjust result. R. 2:10-2. In our view, the judge's failure to provide the jury with the alternative version of the flight charge was not likely to affect the outcome of the trial, particularly in view of the overwhelming evidence of defendant's guilt.
Defendant also argues that the flight instruction was erroneous because it allowed the jury to infer a consciousness of guilt from an attempt to flee. However, evidence of attempted flight may be admitted in a criminal case. State v. Mann, 132 N.J. 410, 420 (1993). Thus, the charge was appropriate in this case.
Next, defendant argues that court erred by failing to declare a mistrial, or undertake an appropriate inquiry, as a result of an incident in which members of the jury purportedly saw defendant in handcuffs and shackles. This contention is completely without merit.
Defendant first raised this issue when he was scheduled to be sentenced. He claimed that a fire drill took place during jury selection and that several jurors saw him on the transport bus where he was being held when they exited the courthouse. The court adjourned the sentencing and conducted an evidentiary hearing on defendant's claim.
At the hearing, evidence was presented which indicated that during fire alarms, inmates are taken out the back of the courthouse, placed in a bus and driven to a rear parking lot, while jurors are taken to the front of the building. Court employees testified that, on the day in question, the jury remained in the front of the courthouse. Moreover, a sheriff's officer stated that, because of the mesh on the windows of the transport bus, it was not possible for persons outside of the bus to identify individuals inside.
Based on this evidence, the court determined that there was no basis to declare a mistrial. The court found that "it would be physically impossible for any juror to make out this
[d]efendant on the bus, or for that matter, to be anywhere near the bus that was transporting the [d]efendant." The court's factual findings are binding on appeal because they are supported by sufficient credible evidence in the record. State
v. Locurto, 157 N.J. 463, 474 (1999). Our deference to the court's fact-finding is particularly appropriate where, as here, the findings are "substantially influenced" by the court's "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).
Last, defendant argues that his sentence is excessive.
Here, the trial court granted the State's motion for imposition of an extended term of incarceration pursuant to N.J.S.A. 2C:44-3(a). The court found that defendant was extended-term eligible because he is a persistent offender, as defined in the statute.
The court found aggravating factors three, risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); nine, need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9); and twelve, offense was committed against a person defendant knew or should have known was sixty years or older or disabled, N.J.S.A. 2C:44-1(a)(12).
The court additionally found mitigating factors four, substantial grounds to excuse or justify defendant's conduct, although not establishing a defense, N.J.S.A. 2C:44-1(b)(4); and eleven, defendant's imprisonment will entail excessive hardship to his dependents, N.J.S.A. 2C:44-1(b)(11).
The court determined that the aggravating factors substantially outweighed the mitigating factors, to which it assigned limited weight. The court stated that, due to the nature of the offense, it believed that a sentence in the middle to upper range of the possible extended term sentences was warranted. The court sentenced defendant to fifteen years of incarceration, and required that defendant serve eighty-five percent of that sentence, pursuant to NERA.
Defendant argues that the court did not weigh the aggravating and mitigating factors in a fair and impartial manner. He asserts that, although he qualified for sentencing as a persistent offender under N.J.S.A. 2C:44-3(a), the court should have exercised its discretion and sentenced him in the range of ordinary, rather than extended term sentences.
We find no merit in these arguments. We are satisfied that the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
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