May 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTONIO MCGEARY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-12-00960.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010
Before Judges Fuentes and Ashrafi.
Defendant Antonio McGeary was tried before a jury and convicted of second degree robbery, N.J.S.A. 2C:15-1a(1), and third degree criminal restraint, N.J.S.A. 2C:13-2a. The court sentenced defendant to a term of ten years on the robbery, with an eighty-five percent period of parole ineligibility and three years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
Although defendant chose not to testify at trial, the evidence presented by the State nevertheless came primarily from defendant's own words contained in a statement defendant gave to Detective Michael Schutta of the Somerset County Prosecutor's Office. This statement was admitted by the trial court after rejecting defense counsel's argument based on Miranda.*fn1 In response to Schutta's questions, defendant described in detail his role and involvement in the event that led to his conviction.
In the early morning hours of October 16, 2005, Precious Taylor, Terrance Moore, and defendant agreed to go to a party at the residence of Marcos Lopez on Thompson Street in Raritan for the purpose of robbing those in attendance of their money and marijuana. Moore brought with him two sets of handcuffs and a gun that, although appearing to be a real weapon, shot only blanks.
Under the plan devised by the three men, Taylor was to be the first to enter Lopez's apartment under the guise of being just another person at the party. Defendant was to soon follow using the same ruse. As the only one of the three who was armed, Moore was going to act as the robber. The plan was executed accordingly.
Moore entered the Lopez party brandishing the "handgun" and ordered the men in attendance to take off their pants and surrender their cellular telephones. Moore then placed the pants and cell phones into a bag. The women were herded into the bathroom. At one point, Moore struck Robert Fileggi and Brandon Cruz-Andrews in the head with his handgun, causing blood to run down the faces of the two men. Defendant "panicked" when he saw Moore strike the two men and left the scene immediately thereafter.
At 2:49 a.m., Raritan Police Officer Nancy Phibbs was directed to respond to a 911 call reporting individuals with guns near Michael's Inn on Thompson Street. Phibbs and fellow Raritan Police Officer Raymond Nolte were en route to the area when they were informed of another 911 call reporting the violence occurring at the party and stating that the actors were still at the Lopez residence with guns. Upon arriving at the residence, Phibbs saw several women leaving the apartment crying and two men dressed only in their underwear from the waist down. Two of the men (later identified as Fileggi and co-defendant Taylor) were handcuffed to each other. According to Phibbs, Fileggi and Cruz-Andrews were both bleeding from apparent head injuries.
Phibbs and Nolte apprehended Moore as he walked away from the residence on Thompson Street. In a search incident to arrest, Nolte found a knife around Moore's neck, a throwing star in a pouch on his belt, and an empty shoulder holster under his jacket. Nolte also recovered a pillowcase found next to the front tire of a vehicle parked near where Moore was arrested. Defendant was apprehended approximately one hour after Moore's arrest.
Defendant now appeals, raising the following arguments:
FAILURE OF THE COURT TO PROPERLY CHARGE RENUNCIATION TO THE JURY DENIED THE DEFENDANT A FAIR TRIAL.
POINT II THE COURT SUBMITTED AN IMPROPER CHARGE OF ACCOMPLICE LIABILITY TO THE JURY DENYING THE DEFENDANT A FAIR TRIAL.
HEARSAY TESTIMONY IMPACTING DEFENDANT'S SIXTH AMENDMENT RIGHTS DENIED DEFENDANT A FAIR TRIAL.
THERE IS INSUFFICIENT EVIDENCE TO SUPPORT A VERDICT FOR CRIMINAL RESTRAINT. (NOT RAISED BELOW)
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THAT TRIAL COUNSEL'S PERFORMANCE WAS INADEQUATE AND SUBSTANTIALLY PREJUDICIAL TO THE DEFENDANT. LESSER INCLUDED OFFENSES WERE NOT SOUGHT BY DEFENSE COUNSEL. NO WADE HEARING WAS REQUESTED. FAILURE TO OBJECT TO OR PROTECT THE DEFENDANT FROM PREJUDICIAL/INADMISSIBLE TESTIMONY.
We address these argument in the order presented.
The court denied defendant's request for a renunciation charge because "the testimony and other evidence, including the defendant's statements made [to] the police clearly indicate that his decision to withdraw from the criminal enterprise occurred at a time after the crime had clearly been committed." We agree.
In order to establish a renunciation defense, a defendant "must prove by a preponderance of the evidence that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose." N.J.S.A. 2C:5-1d; see also N.J.S.A. 2C:2-6e(3). "[S]ince defendant requested the charge, we must determine whether upon an examination of all the evidence, there was a rational basis for the jury to conclude that the affirmative defense was demonstrated." State v. Alston, 311 N.J. Super. 113, 121 (App. Div. 1998).
By his own admission, defendant executed his role pursuant to the agreement reached with his two cohorts. He entered the apartment and pretended to be a party guest when Moore brandished his gun and ordered the men to remove their pants. Defendant left the apartment after the victims had been restrained, deprived of their personal possessions, and physically assaulted by Moore. In short, the crimes of robbery and criminal restraint had been completed before defendant "panicked" and left the scene. These are not acts of renunciation because they were not an attempt to prevent the crime, nor did defendant abandon or avoid participation therein. Alston, supra, 311 N.J. Super. at 121-22.
Defendant next argues that the trial court did not properly instruct the jury on the concept of accomplice liability as it relates to his conviction for second degree robbery. Because defendant did not object to the jury instructions given by the trial court at the time of the charge conference, we review this argument under the plain error standard articulated in Rule 2:10-2:
Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.
Under this standard, we are bound to uphold the decision of the trial court unless we determine that the error is of such magnitude that it is clearly capable of producing an unjust result. State v. Bunch, 180 N.J. 534, 541 (2004).
"[A]n accomplice is a person who, with the purpose of promoting or facilitating another person in the commission of an offense, aids or agrees or attempts to aid the other person in planning or committing the offense." State v. Jackmon, 305 N.J. Super. 274, 285 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998); see also N.J.S.A. 2C:2-6c(1)(b). In order for defendant to be found guilty as an accomplice, the jury must find that he "shared in the intent which is the crime's basic element." Jackmon, supra, 305 N.J. Super. at 285 (quoting State v. Fair, 45 N.J. 77, 95 (1965)). "The liability of each participant for any ensuing crime is dependent on his own state of mind, not on anyone else's." State v. Bridges, 254 N.J. Super. 541, 566 (App. Div. 1992), aff'd in part, rev'd in part on other grounds, 133 N.J. 447 (1993). An accomplice may be convicted of a lesser-included offense from that of the principal. See Ibid.
The trial court instructed the jury on accomplice liability in accordance with the model charge. In the course of deliberations, the jury submitted four questions to the court. Of specific relevance here, the jury asked whether defendant could "be found guilty of first-degree robbery as an accomplice if he, Mr. McGeary, did not have a gun[.]" The court answered, "[I]f you find that the elements of accomplice liability have been established by the State beyond a reasonable doubt the answer is yes." The jury also asked, "can [defendant] be charged in second-degree as an accomplice?" The court responded, "[Y]es, subject to accomplice liability which I have just reminded you of."
The court did not articulate for the jury a factual circumstance under which defendant could be found guilty of a lesser included offense consistent with the evidence presented by the State. Despite this omission, the jury acquitted defendant of first degree robbery and found him guilty of the lesser offense of second degree robbery. We discern no basis to interfere with the jury's verdict under these circumstances.
We next consider whether a State's witness' testimony denied defendant the right to a fair trial. Specifically, defendant argues that his conviction should be reversed based on the following testimony from a police detective:
I wanted to explain the situation to [defendant], basically saying that there was a home invasion tonight, we know that you're involved, the other person that was involved right now is telling his version of the story. If you want to tell your version you could do that, think about it, things of that nature.
Defendant argues that this testimony included hearsay statements of a co-defendant that implicated defendant in the crime and is inadmissible under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). We disagree.
In Bruton, a joint trial was held in which a postal inspector testified that a co-defendant confessed that he and the defendant committed a robbery. Id. at 124, 88 S. Ct. at 1621, 20 L. Ed. 2d at 478. The Supreme Court held that the admission of the co-defendant's testimony violated defendant's Sixth Amendment right to confrontation. Id. at 126; 88 S. Ct. at 1622, 20 L. Ed. 2d at 479.
Here, defense counsel did not object to the testimony in question. In fact, the trial judge brought the testimony to counsel's attention the following day, asking counsel whether there might be a Bruton issue. After discussing the matter with counsel, the court concluded that the testimony was not inadmissible under Bruton and informed defense counsel that she could request a cautionary instruction. None was requested. We discern no basis to interfere with the court's ruling.
Defendant next argues that there was insufficient evidence to support
the conviction for criminal restraint in violation of N.J.S.A.
2C:13-2a because "the plan" did not include Moore striking the
victims, the gun was not real, and there was no
expert testimony that the victims were seriously injured.*fn2
This argument lacks sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2). The evidence was sufficient to
support the criminal restraint conviction.
The remaining arguments raised by defendant based on the alleged ineffective assistance of trial counsel are rejected without prejudice to defendant's right to pursue these claims via a post judgment relief petition. See R. 3:22-12.