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State of New Jersey v. Osborne S. Maloney

July 28, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OSBORNE S. MALONEY,*FN1 DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-11-1492.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 10, 2010 - Decided

Before Judges Fuentes and Gilroy.

A Middlesex County Grand Jury charged defendant with second-degree conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); second-degree conspiracy to commit second-degree burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)1 (count four); two counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts five and six); second-degree burglary, N.J.S.A. 2C:18-2 (count seven); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (count eight); third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count nine); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count ten); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count twelve).*fn2

A jury found defendant guilty of second-degree conspiracy to commit robbery as a lesser-included offense on count one; of third-degree conspiracy to commit burglary as a lesser-included offense on count two; and of counts five, six, seven, eight and ten. The jury acquitted defendant of counts three, four, nine and twelve.

On January 16, 2007, after finding aggravating sentencing factors N.J.S.A. 2C:44-1a(2), (3), and (9), and no mitigating sentencing factors, N.J.S.A. 2C:44-1b, the court sentenced defendant on counts five and six to two eighteen-year terms 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 five-year term of parole supervision upon release; seven-year terms of imprisonment on counts one, seven, and eight; and to four-year terms of imprisonment on counts two and ten. The court directed that all terms of imprisonment run concurrent with each other and imposed all appropriate fines and penalties.

On appeal, defendant argues:

POINT I.

IT WAS REVERSIBLE ERROR FOR THE JUDGE TO FAIL TO INSTRUCT THE JURY ON ACCOMPLICE LIABILITY (NOT RAISED BELOW).

POINT II.

THE TRIAL JUDGE ERRED IN REFUSING THE REQUESTED INSTRUCTIONS ON LESSER-INCLUDED OFFENSES.

POINT III.

VARIOUS MERGERS SHOULD BE ORDERED ALONG WITH A REMAND TO CORRECT THE JUDGMENT OF CONVICTION.

We affirm the convictions; and we vacate the sentences imposed on counts one, two and eight. We also note that the judgment of conviction (JOC) mistakenly indicates that the court imposed a four-year term of imprisonment on count three, a count on which defendant was acquitted, rather than on count ten. Accordingly, we remand for the trial court to enter an amended JOC.

I. We gather the following facts from the testimony presented by the State's witnesses at trial. Syoma Shnayder resides with his wife Rita in a single-family residence in Monroe Township, Middlesex County. On or about August 16, 2005, Chichelnitsky engaged defendant, Rodriguez and Jakubov to rob the Shnayder residence. On August 16 or 17, 2005, defendant, Rodriguez and Jakubov drove to the Shnayders' home in Jakubov's 2003 Lexus. Upon arrival, the three perpetrators sat in the vehicle "scoping out" the residence while planning the commission of the robbery. While there, defendant took pictures of the premises.

On August 19, 2005, at approximately 10:00 p.m., Jakubov drove defendant and Rodriguez to the Shnayder residence. Upon arrival, defendant and Rodriguez exited the Lexus and proceeded to the house while Jakubov remained inside the vehicle. Defendant possessed a knife and a .38 caliber handgun. Rodriguez possessed a nine-millimeter handgun. After entering the property, the two perpetrators saw Syoma Shnayder sitting in a hot tub in the back of the house. With full-face black masks affixed, defendant and Rodriguez approached Syoma Shnayder. Defendant grabbed Syoma Shnayder from behind by his hair and held a knife to his throat. After defendant tied Syoma Shnayder's hands behind his back with plastic zip ties, Rodriguez walked him into the house and demanded that he be told where the money was hidden. When Syoma Shnayder responded, Rodriguez took $7,000 from a table and two watches from a drawer in the kitchen.

Rita Shnayder entered the house and observed defendant wearing a mask. When Rita Shnayder began to scream, defendant covered her mouth and held a knife to her head. As he did so, Rodriguez walked upstairs to look for more valuables. Upon doing so, Syoma Shnayder freed his hands and started to resist. Rita Shnayder then freed herself and ran out the front door of the home to a neighbor's residence and called 9-1-1.

As Rita Shnayder fled the home, Rodriguez began to descend the staircase of the home when he heard a gunshot. Defendant shot Syoma Shnayder in the left side of his abdomen. Upon hearing the gunshot, Rodriguez observed defendant running out of the house. Rodriguez began to follow, but as he did, Syoma Shnayder grabbed his leg. Rodriguez kicked himself free of Syoma Shnayder's grasp and ran out the door observing Jakubov and defendant leaving the scene in Jakubov's motor vehicle. Rodriguez then fled the scene on foot. In flight, Rodriguez removed and discarded the shirt he was wearing; discarded his plastic gloves that he had worn in the residence; and threw his nine-millimeter handgun into the brush and weeds.

When Rodriguez was four or five blocks from the Shnayder residence, he was approached by Patrolman Allan Wayne Excel. After observing Rodriguez breathing heavily and acting nervously, Excel patted Rodriguez down, finding the $7,000, the two watches, and two cell phones taken by Rodriguez from the ...


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