On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-12-1093.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Koblitz.
Following a trial by jury, defendant Michael A. Revan appeals from his July 10, 2009 conviction on a charge of second-degree robbery, N.J.S.A. 2C:15-1, for which the judge sentenced him to a six-year term of imprisonment subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. The sole issue on appeal is whether trial counsel rendered ineffective assistance by failing to present evidence to support a defense of due process entrapment. Because resolution of that issue depends on evidence that lies outside the trial record, we decline to address defendant's claim, and instead preserve it for post-conviction review.
In the early part of September 2008, the Plainfield Police Department became aware of a number of robberies that occurred in and around the 400 block of West Front Street, in which intoxicated men wearing cowboy hats and leaving local taverns at closing time were being attacked and robbed. To address that problem, Detective Ronald Fusco, along with Detectives Troy Alston and Daniel Staten, decided to have Fusco wear a disguise and act as an intoxicated male, which Fusco described as "working undercover as a decoy robbery victim."
On the night of September 12, 2008, Fusco donned the disguise and started "walking [while] pretending to be intoxicated." As a "prop," he had a wallet, with three $20 bills protruding from it, hanging by a chain from his belt. The currency had been photocopied by Fusco before he placed it into the wallet. While Fusco was "stumbling" and "pretending that [he] was drunk," he observed a male, later identified as defendant, across the street at the intersection of Washington Avenue and West Front Street. Defendant began walking in Fusco's direction, but Fusco kept his head down because he was "well-known out there" and was afraid of being recognized. Defendant approached Fusco, while defendant was holding money in his hand, and asked Fusco for change. When Fusco began fumbling with his money, still pretending to be intoxicated, defendant grabbed Fusco by his arms and threw him to the ground.
According to Fusco, defendant used "a lot" of force and "knocked the wind out of [him], [putting him] in fear for [his] life." With Fusco on the ground, defendant began to pull on the wallet "violently" until the chain broke. Once he had grabbed the wallet, defendant ran eastbound toward Detective Alston, who was also in disguise. Alston tackled defendant to the ground, at which point Detective Staten assisted and other members of the police force, who were in undercover vehicles within the area, also responded. Defendant was found to be in possession of the wallet and the pre-marked money.
Defendant testified on his own behalf, explaining that on the night in question, he was walking to his friends' house. As he proceeded down Front Street, he saw a man leaning against a fence, fumbling as if he was drunk. When defendant approached the man to ask him if he had any change, he saw that the man had money in his wallet, but defendant did not realize that the wallet was attached to the man's belt by a chain. Defendant grabbed the wallet and ran. By the time he reached the middle of the block, he was caught and apprehended by police. Defendant insisted that he never pushed the man who he later learned was Detective Fusco.
In his closing argument, defense counsel argued that defendant was not guilty of robbery, as he had not used force against Detective Fusco. The jury returned a verdict of guilty nonetheless. During his allocution at the time of sentencing, defendant asserted that he had been "set up." He stated:
[A]t the time[,] I was going about my business, you know, and they set the crime up, and I was (indiscernible) and I went for it. I never denied I did it. That's why I took the stand. I said all I did was snatch the wallet and I ran.
The trial judge acknowledged defendant's position, commenting that defendant's belief that he had been set up had prevented him from entering a plea of guilty to a charge of third-degree theft. The judge stated:
Look, I talked to you about this offer, [defense counsel] talked to you about this offer, you didn't want this offer. You didn't want to hear about it. You felt that you were entrapped. I explained to you what entrapment was, [defense counsel] explained to you what entrapment was. You know, ...