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State of New Jersey v. Wendell Pittman A/K/A Wendell Chambers

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 3, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WENDELL PITTMAN A/K/A WENDELL CHAMBERS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-01-0013.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2011

Before Judges Parrillo, Yannotti and Espinosa.

Following a jury trial, defendant Wendell Pittman was found guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); first-degree using a juvenile to commit a criminal offense, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:24-9 (count three); first-degree armed robbery, N.J.S.A. 2C:15-1 (count four); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count five); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b) (count seven).*fn1 The trial court sentenced defendant to concurrent fifteen-year terms for the use of a juvenile to commit an offense and armed robbery, subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; concurrent seven-year terms for the aggravated assault and conspiracy; and a concurrent three-year term for unlawful possession of a weapon, for an aggregate fifteen-year term subject to NERA. Appropriate fees and penalties were also imposed. Defendant appeals and we affirm.

The crimes for which defendant was convicted were committed on the night of March 22, 2007. After attending an after-school basketball game together, defendant, Gregory Bates, Janelle Gaines and sixteen-year-old S.B. went to a restaurant on Throop Avenue in New Brunswick.*fn2 According to Gaines, who knew defendant as "Sheik," once outside the restaurant, Bates pulled out a gun, which defendant "snatched" while asking Bates "what the 'F' is you doing." At the same time, the group discussed robbing a cab driver. The plan was to pay the driver and, when the driver took out his wallet to make change, Bates and defendant would grab him while S.B. and Gaines stole the money.

In furtherance of this plan, between 8:30 p.m. and 9:00 p.m., one of the males called the cab company and cab driver Johnson Olowe was dispatched to 384 Remsen Avenue, New Brunswick, where he picked up the group.*fn3 Four of them got in the back seat, with defendant sitting directly behind the driver, according to Gaines. There was possibly a fifth member riding in the front passenger seat. In any event, Olowe was told to drive to a nearby Baptist church, but along the way the passengers changed their minds and told Olowe to go to Oak Leaf Drive in North Brunswick so they could collect money from a friend. Suspicious of the group, Olowe tried to engage them in conversation during the trip and attempted several times to turn on the cab's interior light to see their faces. Each time, however, they would turn the light off.

When the cab reached Oak Leaf Drive, one member of the group told Olowe to pull over to a darkened area, but Olowe refused, explaining that it was company policy to only drop passengers off in front of a house. In response, someone in the group began calling Olowe a "bitch" and a "monkey," at which point Olowe slowed the car to turn to see the face of the man behind him. When he turned, the passenger seated directly behind him shot him in the neck, causing the car to crash into a pole.

Once the shot rang out, the passengers in the cab fled the scene on foot. When police arrived, the scene was secured and first aid was administered to Olowe, who was bleeding from the back of the neck. Before he was rushed to the hospital, Olowe pointed in the direction to which his assailants had fled. The responding police then apprehended defendant, S.B., Bates and Tashiem Edwards in the area of How Lane, which Olowe had pointed out, near a Social Services building.

Defendant, Edwards, S.B., and Bates were taken to the hospital for a show-up before Olowe, who identified S.B. and Bates as passengers in the cab and Bates as the shooter. Olowe confirmed his identifications one week later. Edwards was later released. Although Olowe at first thought his cash fares, wallet and cell phone were stolen, it was later ascertained that he was mistaken as nothing had been taken from him during the incident.

The gun was never recovered. The bullet recovered from the scene was identified as from either a .22 or .25 caliber gun. A black bandana, like the one Bates said defendant had in his pocket during the incident, was found at the scene, although defendant's DNA was not recovered from it.

Bates gave a videotaped statement to the police claiming that the group of five plotted to rob a cab driver and that it was defendant who called for the cab, sat behind the driver wearing a hooded sweatshirt, pulled out a gun and shot the cab driver. When he jumped out of the cab, defendant dropped the gun and ran. Bates picked it up and gave it to someone, but does not know its whereabouts.

On July 17, 2007, Gaines also gave a videotaped statement to the prosecutor's office wherein he asserted that defendant brought the gun into the car, shot the driver and then fled with the rest of the group, throwing away the gun while he ran. Gaines also claimed that when he asked why the gun went off, defendant said that his finger was on the trigger and it just slipped. Defendant was arrested on August 18, 2007.

During a March 12, 2008 interview with an investigator from the Public Defender's Office, Gaines partially recanted his statement implicating defendant, claiming that he lied when he said that defendant was the shooter. Gaines, however, did not recant the portion of his statement that named defendant as one of the five members of the group who participated in the robbery. Gaines later recanted his initial recantation.

Defendant gave a recorded statement to the police in which he claimed to have been on his way to his brother's house, walking with his girlfriend, Brittany, past two other males near the Social Services building when one of them asked him for a cigarette. The police then stopped the trio, advised them that someone had been shot, and arrested them for the shooting. Defendant denied knowing either of these males - Bates or S.B. - although he had seen them around the neighborhood. Defendant also denied that he was known by the name "Sheik."

S.B. testified for the defense that he was in the cab with "Hassan," Bates, "Jerome" and "Hot Fire," whose real name he did not know, and that neither defendant nor Gaines were present. According to S.B., Hot Fire planned the robbery and sat directly behind the cab driver with a gun. According to the plan, Hot Fire would put the gun to the back of the driver's head and Hassan would get the money. S.B. also claimed that he did not know defendant and that defendant was just walking by when Bates asked him for a cigarette. S.B. admitted that while incarcerated he wrote a letter to Bates telling him what to say to the police about the incident. S.B. eventually admitted that he knew Gaines.

Evidently crediting the State's version, the jury convicted defendant of armed robbery, among other offenses charged. On appeal, defendant raises the following issues:

I. DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; A REVERSAL IS REQUIRED.

A. TRIAL COUNSEL FAILED TO INFORM THE DEFENDANT THAT JANELLE GAINES HAD NOT RECANTED HIS ENTIRE TESTIMONY.

II. THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS, AND BY DENYING DEFENDANT'S MOTION FOR A MISTRIAL, DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED.

III. THE COURT FAILED TO CHARGE THE JURY TO NOT FORM AN OPINION OF GUILT DUE TO THE REPRESENTATION OF THE DEFENDANT BY THE OFFICE OF THE PUBLIC DEFENDER (NOT RAISED BELOW).

IV. THE TRIAL COURT ERRED BY ALLOWING THE TESTIMONY OF WITNESSES TO BE FIRST HEARD OUTSIDE THE PRESENCE OF THE JURY IN CONTRAVENTION OF DEFENDANT'S 6TH AMENDMENT RIGHTS.

V. THE TRIAL COURT ERRED BY PERMITTING TESTIMONY REGARDING THE CHARGES AND DISPOSITIONS OF THE CO-DEFENDANTS TO BE HEARD BY THE JURY (NOT RAISED BELOW).

VI. THE COURT ERRED BY ALLOWING STREET NAMES TO BE USED REFERRING TO THE DEFENDANT WHICH WAS PREJUDICIAL (NOT RAISED BELOW).

VII. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

VIII. THE COURT ERRED BY DENYING DEFENDANT'S

MOTION FOR A NEW TRIAL.

IX. THE SENTENCE IMPOSED WAS MANIFESTLY

EXCESSIVE AND SHOULD BE REDUCED. We will address the issues in the order raised.

I.

Defendant argues that his counsel was ineffective for misinforming him as to the nature and extent of Gaines's recantation, thus misleading him into rejecting the prosecutor's plea offer of a five-year prison term subject to NERA and to instead proceed to trial. Some background is in order. In his initial statement to police on July 17, 2007, Gaines implicated defendant as a participant in the robbery and as the shooter. He later recanted that statement and said he would testify for the defense. Still later, on July 16, 2008, Gaines told representatives of the prosecutor's office that, while defendant planned and participated in the robbery, he was not certain who pulled the trigger, although he saw defendant in possession of the gun both before and after the shooting. Gaines testified consistently at trial that, while defendant was involved in the planning and execution of the robbery, Gaines did not remember telling the prosecutor's office that defendant was the shooter.

In his motion for a new trial based on this ground, defendant submitted the certification of his trial counsel, who attested that he told defendant that Gaines had recanted his entire statement, i.e., that defendant did not participate in the criminal endeavor whatsoever, when, in fact, Gaines had continued to maintain that defendant was involved in the robbery, but was uncertain whether he was the shooter. According to trial counsel, had he realized that Gaines's recantation was only partial, he would have advised defendant that, in light of the law of accomplice liability, such a partial recantation was of no benefit to his case. According to defendant's certification, had he been properly advised by his trial counsel as to the nature of Gaines's statement and its legal significance, he would have accepted the prosecutor's plea offer rather than risk going to trial.

In denying defendant's motion for a new trial, the judge concluded:

[Trial counsel] was very forthright when he put on the record how he feels, that he did something wrong in the representation of [defendant]. In that, he misunderstood or misread the testimony of the co-defendant, the juvenile, and the effect that would have on his trial strategy, and that, but for that mistake, or those mistakes, that this young man would have received a guilty plea. And there are two prongs with regard to the . . . Strickland [Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] test - - that I have to take into consideration, with regard to the ineffective assistance of counsel.

But, at this time, I feel that the defense fails, with regard to the second prong. And, as a result, the motion for the new trial is denied. That's not to say that this motion cannot be reviewed at a later date as a PCR. At which time, [trial counsel] would then be a witness, and be subject to direct and cross-examination, for the expansion of the record. And I appreciate [trial counsel's] contention, that I could just look at the certification.

But that's not enough for me. I do enough PCRs, where [defendant] would be represented by someone else, for PCR purposes. And then [trial counsel] would come in, as a witness.

That's how it works.

Defendant now argues that he was entitled to a new trial due to his counsel's ineffectiveness. Yet, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 683 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). We usually defer such claims for post-conviction relief because they often entail factual disputes that are outside the trial record. State v. Preciose, 129 N.J. 451, 462 (1992). Thus, when an evidentiary hearing is required, an ineffective assistance claim is better addressed by a post-conviction application than by a direct appeal. State v. Abdullah, 372 N.J. Super. 252, 277 (App. Div. 2004), aff'd in part, rev'd in part on other grounds, 184 N.J. 497 (2005). We discern no reason to deviate from this course here given the state of the record.

While both defendant and trial counsel submitted certifications in support of the new trial motion, neither have been tested by cross-examination and it would be inappropriate, therefore, to decide the claim of ineffective assistance solely on these certifications. See State v. Pyatt, 316 N.J. Super. 46, 50 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). Moreover, a PCR evidentiary hearing would address not only the precise nature of the advice counsel imparted to defendant, but also whether any misinformation, in fact, affected defendant's decision to reject the plea offer and proceed to trial. The appropriateness of such an inquiry is all the more apparent given suggestions in the record that: (1) defendant and his counsel had the benefit of a report from the prosecutor's investigator who interviewed Gaines prior to trial, wherein Gaines "recanted his previous recantation, prior to trial"; and (2) according to the State, defendant retained the ability to plead guilty prior to trial since there was no plea cut-off date. In other words, questions remain outside the trial record as to whether counsel made defendant aware of the State's intention to put Gaines on the stand and what effect, if any, that had on defendant's decision to go to trial. Such questions render the resolution of defendant's ineffective assistance claim more appropriate via a post-conviction application than by direct appeal.

II.

Defendant next contends that the prosecutor's remarks in summation deprived him of a fair trial. Specifically, defendant challenges the prosecutor's comment about the angle of the bullet; his characterization of defendant as the "big fish" and of defendant's account of the incident as a "lie"; his reference to defendant's alleged nicknames; and his mention of the State's cooperation agreement with witnesses Gaines and Bates. We find that these comments, either singly or in combination, do not amount to error, much less plain error, Rule 2:10-2.

A prosecutor's "duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006). However, as long as the prosecutor's remarks in summation are "reasonably related to the scope of the evidence presented[,]" he or she is allowed considerable flexibility. State v. Frost, 158 N.J. 76, 82 (1999). It is expected that the State's summation should be "vigorous and forceful[,]" but tempered by a prosecutor's primary duty "to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987) (internal quotations and citations omitted).

Generally, "[p]rosecutors are afforded considerable leeway in closing arguments." Frost, supra, 158 N.J. at 82 (citing State v. Harris, 141 N.J. 525, 559 (1995)). Indeed, a prosecutor's remarks may be harmless if they are only a response to remarks by opposing counsel. State v. DePaglia, 64 N.J. 288, 297 (1974). Accordingly, as this court undertakes its review, it must "take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties." Harris, supra, 141 N.J. at 559.

On appeal, this court will reverse a criminal conviction if the State's conduct "was so egregious that it deprived the defendant of the right to a fair trial." State v. Josephs, 174 N.J. 44, 124 (2002) (citing State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001)). However, the prosecutor's conduct must have been "'clearly and unmistakably improper'" and must have "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense" in order to warrant reversal. Timmendequas, supra, 161 N.J. at 575 (quoting State v. Roach, 146 N.J. 208, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)). Moreover, a judge's instruction to the jury that the remarks of the attorneys in their opening and closing statements are not to be considered as evidence serves to reduce any potential prejudice created by the challenged comments. Ramseur, supra, 106 N.J. at 323; State v. Collins, 262 N.J. Super. 230, 238 (App. Div. 1993). Furthermore, the lack of any objection to the prosecutor's remarks in summation generally suggests that the statements are not prejudicial. Josephs, supra, 174 N.J. at 126; Timmendequas, supra, 161 N.J. at 576; Ramseur, supra, 106 N.J. at 323. Accordingly, pursuant to the plain error standard, Rule 2:10-2, it is only when "the possibility of an unjust result is sufficient to raise in our minds a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached" that a new trial is required. State v. Walden, 370 N.J. Super. 549, 562 (App. Div.), certif. denied, 182 N.J. 148 (2004).

Governed by these standards, the challenged comments were not improper. In the first place, defendant failed to object to many of them. Moreover, the court instructed the jury that counsel's comments in opening and closing statements are not evidence. Most significant, the prosecutor's remarks were based on evidence in the record or reasonable inferences therefrom and thus constituted fair comment thereon.

For instance, the prosecutor's comment that the shot was fired from the direction of the person seated behind the driver was based on the testimony of several witnesses who stated that the shot came from the seat behind, where defendant was sitting. Contrary to defendant's contention, a forensics expert was not needed to establish where the shot came from since the lay witnesses were capable of testifying to what they observed. See N.J.R.E. 701; State v. Bealor, 187 N.J. 574, 586 (2006). So too, the prosecutor's comment on the consideration given the State's witnesses (Gaines and Bates) in exchange for their cooperation was neither confusing nor prejudicial, but based soundly in the record.

Somewhat related, the prosecutor's characterization of defendant as the "big fish" in relation to the roles of Gaines and Bates was fair comment on the evidence that established defendant as the planner and chief participant of the conspiracy plot, and also perhaps helped explain why a deal was reached with the lesser actors. In this regard, the prosecutor's remark that defendant "doesn't know what he's talking about because he's lying to you" was in reference to defendant's statement to the police that he simply happened upon the scene and how that unlikely version of the events stood in direct contradiction to the trial witnesses' statements. The prosecutor's comments constituted a fair attack on the defense and the credibility of defendant's out-of-court account.

The prosecutor's references to defendant's supposed nicknames also amounted to no more than fair comment on the evidence and were not prejudicial. Gaines testified he knew defendant as "Sheik" and S.B. called the person sitting behind the driver, who Bates had identified as defendant, as "Hot Fire." Thus, a reasonable inference could be drawn from their testimony that defendant was the person Gaines identified and to whom S.B. may have been referring, and the prosecutor's reference to these nicknames on summation was therefore proper.

As to the related claim of prejudice from such references, suffice it to say, "[t]he use of defendant's street nickname during trial cannot serve as a per se predicate for reversal."

State v. Paduani, 307 N.J. Super. 134, 146 (App. Div.), certif. denied, 153 N.J. 216 (1998). Rather, for reversal, there must be "some tangible form of prejudice [] demonstrated, i.e., where such names have been intentionally offered as indicia of guilt." State v. Salaam, 225 N.J. Super. 66, 73 (App. Div.) (emphasis added), certif. denied, 111 N.J. 609 (1988).

Here, defendant has pointed to no tangible form of prejudice attributable to the use of either name. There is no suggestion of any criminality in the names themselves, or as with aliases, for example, of any prior arrest history. On the other hand, their relevance is apparent given the existence at trial of a genuine issue of identity, as defendant claimed he was not part of the criminal episode. Accordingly, evidence of such possible identifiers was clearly admissible and reference thereto on summation was fair comment. As for the prosecutor's addition of the common definition of "Sheik," such commentary simply iterated the State's theory of defendant as ringleader of the criminal conspiracy, a position soundly founded in the evidence.

III.

Defendant claims that testimony from his defense investigator that she worked for the Public Defender's Office was tantamount to informing the jury that he was represented by that office, was indigent, and therefore had a motive to rob the cab driver. Defendant further contends that this error was compounded by the court's failure to issue a curative instruction. We disagree.

As a threshold matter, we note that the elicitation of the challenged testimony was by defense counsel, who never requested a curative instruction. Therefore, any error, to be reversible, must amount to plain error, R. 2:10-1; R. 1:7-2, clearly capable of producing an unjust result. R. 2:10-2. State v. Noble, 398 N.J. Super. 574, 596 (App. Div.), certif. denied, 195 N.J. 522 (2008). We discern no error, much less plain error here.

In State v. Martini, 131 N.J. 176 (1993), the Court considered whether an inadvertent remark of a defense expert that the case was a "Public Defender case" amounted to plain error. Id. at 265. The Court, noting that the testimony was "brief and non-responsive," and that defense counsel's failure to object may have represented "his desire not to highlight the topic," found that any prejudice which resulted was "incapable of bringing about an unjust result." Id. at 266-67.

The same can be said here. Defense counsel himself broached the issue by asking the witness, on direct examination, where she worked. Moreover, the ensuing colloquy was brief and fleeting. In her response, the witness explained that while she worked for the Public Defender's Office as an investigator, she also handled cases assigned to private counsel and was assigned to work on defendant's case in that capacity. Under the circumstances, we conclude there was no error either in the admission of the challenged testimony or the judge's failure to give a curative instruction.

IV.

Defendant next contends, again for the first time on appeal, that it was reversible error to admit testimony that co-defendants Gaines and Bates pled guilty and were incarcerated in the instant matter, and for the court not to charge that such testimony may not be considered as substantive evidence of defendant's guilt. We discern no reversible error here.

Clearly, the guilty plea of a co-defendant is inadmissible at the trial of a defendant as substantive evidence of the defendant's guilt. State v. Stefanelli, 78 N.J. 418, 433 (1979). However, a testifying co-defendant's guilty plea is admissible to affect his or her credibility as a witness. Id. at 433. N.J.R.E. 609 specifically permits evidence of a conviction for the purpose of affecting the credibility of any witness, unless otherwise excluded by the court. Of course, when conviction evidence is properly admitted for impeachment, the jury should be instructed under N.J.R.E. 105 as to the limited effect to be given to the prior conviction. State v. Murphy, 376 N.J. Super. 114, 122 (App. Div. 2005); State v. Wray, 336 N.J. Super. 205, 212 (App. Div.), certif. denied, 168 N.J. 290 (2002).

Here, Gaines and Bates properly testified as to their roles in the robbery and their subsequent guilty pleas and criminal convictions. The latter were relevant because they bore directly on the witnesses' credibility and potential bias, as defense counsel's own cross-examination well demonstrates. Moreover, the judge's jury instruction properly charged the limited purpose for which this evidence had been admitted, namely "to allow you to determine whether their testimony has been influenced by a possible bias, prejudice, interest or ulterior motive. More specifically this evidence may be relevant to the question whether the testimony is influenced by a hope or expectation of favorable treatment."

To be sure, the charge failed to also instruct the jurors against using the co-defendants' guilty pleas as substantive evidence of the defendant's guilt. However, we do not consider this omission to be so deficient as to warrant reversal. In State v. Adams, 194 N.J. 186 (2008), when faced with a similar jury instruction, the Court stated that the trial court should have instructed the jury to carefully scrutinize [the] co- defendant['s] . . . testimony, and not to consider his guilty plea as substantive evidence of defendants' guilt but only in assessing [the co-defendant's] credibility. Defendants, however, neither requested those instructions nor did they object to the instructions that were given. The question then is whether in the context of the trial, the error was clearly capable of bringing about an unjust result.

We find no plain error in the court's failure to give a cautionary instruction on the allowable uses of [the co-defendant's] guilty plea and his testimony. At trial, defense counsel thoroughly cross-examined [the co-defendant] to challenge his credibility and [the co-defendant's] lack of credibility was a major theme in closing arguments for the defense, which asserted that [the co-defendant] was a liar. The detailed testimony of [the co-defendant] independently established his guilt of the crime and, therefore, his guilty plea added little weight to that testimony. Further, the trial court gave the standard charge on credibility. Under those circumstances, we are satisfied that "the error did not have the clear capacity to produce an unjust result and that it had a minimal effect on the outcome of trial." [Id. at 208-09 (internal citations omitted).]

Here, as in Adams, both Bates and Gaines were subject to thorough cross-examination in which their credibility and potential bias were explored in depth. Additionally, Bates's and Gaines's credibility were attacked at length in the defense's summation. Further, Bates's and Gaines's detailed testimony independently established their guilt and, therefore, their guilty pleas added little weight to that testimony. And finally, the trial court gave a jury charge that instructed on the limited purpose for which such evidence was admitted.

Accordingly, while it would have been preferable for the judge to have specifically instructed the jury not to consider Bates's and Gaines's guilty pleas as substantive evidence of defendant's guilt, under the totality of the circumstances, defendant suffered no demonstrable prejudice.

V.

Defendant next contends the verdict is against the weight of the evidence. However, he never moved for a new trial on this ground. Generally, the failure to do so precludes consideration of the issue for the first time on appeal. R. 2:10-1; Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 (App. Div. 1998); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). However, in the interests of justice, State v. Soto, 340 N.J. Super. 47, 73 (App. Div.), certif. denied, 170 N.J. 209 (2001), overruled in part on other grounds, State v. Dalziel, 182 N.J. 494 (2005); State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div. 1993); Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 2:10-1 (2011), we will address the merits of the claim.

A jury verdict may only be set aside as against the weight of the evidence if, considering the jury's opportunity to assess the witnesses' [credibility], a manifest denial of justice clearly and convincingly appears. See R. 3:20-1. The jury is free to believe or disbelieve a witness's testimony. See State v. Reyes, 50 N.J. 454, 464 (1967). On a motion for a new trial, the objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error. See State v. Balles, 47 N.J. 331, 337 (1966), appeal dismissed and cert. denied, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967). [State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997).]

"Unless no reasonable jury could have reached such a verdict, a reviewing court must respect a jury's determination." State v. Afanador, 134 N.J. 162, 178 (1992). Thus, a reviewing court must sift the evidence to determine whether a jury could have rationally found that the essential elements of the crime were proved beyond a reasonable doubt. Id. In this regard, courts have long recognized the "obligation 'to accept as true all the evidence supporting the jury's verdict and to draw all reasonable inferences in its favor whenever reasonable minds could differ.'" Bell Atlantic Network Servs., Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 83 (App. Div.) (quoting Harper- Lawrence, Inc. v. United Merchants and Mfrs., Inc., 261 N.J. Super. 554, 559 (App. Div. 1993)), certif. denied, 162 N.J. 130 (1999).

As pertinent here, a person is guilty of robbery if:

[I]n the course of committing a theft, he:

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

(3) Commits or threatens immediately to commit any crime of the first or second degree.

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission. [N.J.S.A. 2C:15-1(a) (emphasis added).]

Robbery, therefore, consists of the following elements:

"(1) theft or attempted theft; (2) intimidating or assaultive conduct consisting of (a) inflicting bodily injury upon another or (b) threatening another with or purposely putting him in fear of immediate bodily injury or (c) committing or threatening immediately to commit any crime of the first or second degree [or (d) using force upon another person]; (3) the intimidating or assaultive conduct must have occurred during the theft or attempted theft or in immediate flight after the theft or attempted theft, and (4) defendant must have acted purposely. Theft is defined, generally, as the unlawful taking or exercise of unlawful control over property of another with purpose to deprive him thereof . . . . N.J.S.A. 2C:20-3. Attempted theft is defined by combining the foregoing definition of theft with N.J.S.A. 2C:5-1a. It is an abortive effort to perpetrate a theft." [State v. Farrad, 164 N.J. 247, 257 (2000) (quoting State v. Carlos, 187 N.J. Super. 406, 412 (App. Div. 1982), certif. denied,

93 N.J. 297 (1983)) (emphasis added).]

Robbery is elevated to a crime of the first-degree "if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b).

The fact that, here, nothing was actually taken from the cab driver is not dispositive because "a defendant can be convicted of robbery, even if the theft is unsuccessful, if he or she (1) purposely takes a substantial step (2) to exercise unlawful control over the property of another (3) while threatening another with, or purposely placing another in fear of, immediate bodily injury." Farrad, supra, 164 N.J. at 258 (emphasis added). The "'substantial step' requirement in the 'attempt' statute, N.J.S.A. 2C:5-1a(3), is satisfied if a defendant acts in a way that is 'strongly corroborative of the firmness of his purpose' to carry out the crime." Ibid. (quoting State v. Fornino, 223 N.J. Super. 531, 538 (App. Div.), certif. denied, 111 N.J. 570, cert. denied, 488 U.S. 859, 109 S. Ct. 152, 102 L. Ed. 2d 123 (1988)).

Here, the record amply demonstrates that defendant and his co-conspirators crafted a plan to forcefully steal from a taxi-driver at gunpoint, and in furtherance thereof called a cab company, entered the cab with the intent to steal and armed with a gun, and commenced executing their plan, which was aborted when the cab driver was shot in the neck from behind. In our view, this evidence is strongly corroborative of the firmness of the group's purpose to carry out the crime and supports the finding that defendant took a "substantial step" toward committing a theft, which, when coupled with the victim's resultant serious bodily injury, is sufficient to support defendant's armed robbery conviction.

Defendant nevertheless contends that because the gun was fired inadvertently, the evidence is insufficient that he knowingly inflicted bodily injury, or used force upon the victim, see State v. Sewell, 127 N.J. 133, 150 (1992), and therefore an essential element of robbery is lacking. We disagree. In the first place, the jury was free to reject Gaines's account of what defendant told him out-of-court and rely instead on ample other evidence of the requisite state of mind, including defendant's handling of the gun before, during and after the shooting. Moreover, other than the infliction of injury or use of force, a robbery may be committed by threatening another with immediate bodily injury. N.J.S.A. 2C:15-1a(2). In this regard, the evidence supports a reasonable inference that defendant threatened or purposely put the cab driver in fear of immediate bodily injury. The group agreed on robbing a cab driver and entered the cab armed with a gun; argued with the driver as to where to be dropped off; derided him; concealed their identities; and one of its members, namely defendant, pulled out the gun, aimed it at the driver, and fired at the driver. This constitutes sufficient evidence to support defendant's first-degree robbery and related convictions.

VI.

We have considered defendant's remaining contentions and conclude that none of them is of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.


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