On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-08-1368.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodriguez, Grall and LeWinn.
In 2000, defendant was indicted along with co-defendant Godfried Mainhooh for: second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count four). Defendant was also indicted for second-degree certain persons not to have firearms, N.J.S.A. 2C:39-7(b) (count six), and third-degree resisting arrest, N.J.S.A. 2:29-2(a) (count ten). Tried alone, defendant was convicted on counts one, two, three, four and ten.*fn1
At sentencing, the State moved to dismiss count six. Defendant was sentenced to an aggregate term of fifty years imprisonment with a seventeen-year period of parole ineligibility.
Defendant appealed. We reversed his convictions for possession of a weapon for an unlawful purpose and resisting arrest, based on erroneous jury instructions. State v. Samuels, No. A-0967-02 (App. Div. November 9, 2005) (slip op. at 27-28). The Supreme Court granted defendant's petition for certification. 186 N.J. 244 (2006).
On January 31, 2007, the Supreme Court reversed defendant's convictions for conspiracy and armed robbery, holding that the trial judge had erred in failing to charge attempted robbery as a lesser-included offense and in failing to provide accurate jury instructions on the distinction between conspiracy and accomplice liability. State v. Samuels, 189 N.J. 236, 252, 253-54 (2007).
The matter was remanded for retrial on counts one, two, three and ten. At pretrial proceedings on July 3, 2008, defendant sought to discharge his court-appointed attorney and represent himself. Following a hearing, the judge denied this request, finding from his questioning of defendant that he was not capable of representing himself. The judge found that defendant showed confusion as to: (1) "how he was convicted the last time"; (2) "the jury's ability to reach their conclusions"; (3) "why he was initially charged with robbery in the indictment"; (4) "what an affirmative defense is"; and (5) "whether or not it would be in his best interest to either testify or not testify without having someone giving him advice on that issue." The judge further concluded that defendant would be unable "to articulate properly his cause to the jury. He is not familiar with the voir dire process . . . and what all that entails."
The judge reviewed the evidence from the first trial, as well as the appellate decisions, and stated that he was satisfied, listening to the defendant read . . . his understanding of how the matter got here, that he doesn't completely understand it. . . . [I]t would be a travesty of justice . . . to allow him at this point to represent himself. . . .
He is not capable, based on his educational background, his knowledge of the law, and his abilities here, to effectively provide his own counsel.
Retrial was held between December 2 and 10, 2008. At the outset, the judge granted the State's motion to reinstate count six with the understanding that if defendant were again convicted of armed robbery, the State would dismiss that count at sentencing as it had done after the first trial. The judge also noted that neither this court nor the Supreme Court had addressed defendant's conviction on count four, aggravated assault by pointing a weapon at a police officer. Defendant stated his preference that count four not be vacated and retried.
The State then moved to dismiss count one without prejudice, stating that it intended to proceed on the theory of accomplice liability. Defendant did not object to this.
Trial then proceeded on counts two, three and ten of the indictment. We summarize the pertinent trial evidence.
On the evening of May 4, 2000, several officers assigned to the Anticrime Task Force of the Long Branch Police Department were at the Fountains Motel for the purpose of conducting an undercover narcotics investigation, specifically with respect to Mainhooh, known to them as "Rahim." An informant had told the officers that "Rahim" did not "like to do open air drug deals. He preferred to come to somebody's house or . . . a secure location." Therefore, the officers booked two adjacent rooms, 229 and 230, at the motel. Officer Jeffrey Pilone and Lieutenant Roebuck were in Room 229; other officers were next door.
Around 10:00 p.m., using the motel room phone, Pilone called "Rahim" on a cell phone number the informant had provided. The officer identified himself as "Jimmy" and said he had met "Rahim" in Asbury Park "at . . . Mama's house[,]" which was a password also provided by the informant. The person who answered identified himself as "Rahim." Pilone ordered "two bundles of heroin and crack cocaine, for a total of $1200. "Rahim" said he would deliver the drugs in a half hour.
About five minutes later, "Rahim" called the motel room telephone to confirm that "Jimmy" was still there. An hour later, "Rahim" knocked on the door of Room 229. Twice, Pilone said "Who?" and "Rahim" responded with his ...