On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-01-00105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2010
Before Judges Gilroy and Nugent.
A Middlesex County Grand Jury charged defendant Michael Derrick and co-defendant Ebonee Williams with second-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree theft (shoplifting), N.J.S.A. 2C:20-11b (count two); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count three). Prior to trial, the State amended count three to charge conspiracy to commit third-degree shoplifting, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-11b. A jury found defendant guilty on all three counts.*fn1
On December 7, 2007, the trial court sentenced defendant on count one to a seven-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a three-year term of parole supervision upon release. The court merged the convictions on counts two and three with the conviction on count one, and imposed all appropriate fines and penalties.*fn2
On appeal, defendant argues:
THE COURT ERRED IN ITS JURY CHARGE FOR SECOND-DEGREE ROBBERY IN
A. FAILING TO INCLUDE INSTRUCTION AND CASE-SPECIFIC EXAMPLE THAT RECKLESSNESS DOES NOT MEET THRESHOLD FOR INTENTIONAL OR PURPOSEFUL BEHAVIOR FOR SECOND-DEGREE ROBBERY (NOT RAISED BELOW).
B. FAILING TO INCLUDE INSTRUCTION ON SELF-DEFENSE NON-DEADLY FORCE (NOT RAISED BELOW).
THE COURT ERRED IN ITS ACCOMPLICE- LIABILITY CHARGE AS IT FAILED TO EXPLAIN HOW DEFENDANT COULD BE GUILTY OF THE THEFT OR CONSPIRACY OF THEFT YET NOT BE AN ACCOMPLICE TO THE ROBBERY AND FAILED TO PUT THE CHARGE INTO THE CONTEXT OF THE FACTS (NOT RAISED BELOW).
BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE RETAIL VALUE OF THE MERCHANDISE TAKEN WAS GREATER THAN 500 DOLLARS, THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S ...