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State of New Jersey v. Charles E. Macon


August 19, 2011


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-03-0376.

Per curiam.


Argued November 9, 2010

Before Judges Parrillo, Yannotti and Espinosa.

Defendant Charles E. Macon was tried before a jury, found guilty of carjacking and robbery, and sentenced to thirty years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant appeals from the judgment of conviction entered by the trial court on July 11, 2008. For the reasons that follow, we affirm.


Defendant was charged with first-degree carjacking, in violation of N.J.S.A. 2C:15-2(a)(1); second-degree robbery, in violation of N.J.S.A. 2C:15-1(a)(1); third-degree burglary, in violation of N.J.S.A. 2C:18-2(a)(1); third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(7); and fourth-degree contempt, in violation of N.J.S.A. 2C:29-9(a). The trial court severed and dismissed the contempt charge.

Defendant was tried before a jury, which found him not guilty of burglary, but guilty of the other charges. At sentencing, the court merged the robbery conviction with the carjacking conviction. The court sentenced defendant to thirty years of incarceration, with a period of parole ineligibility as prescribed by NERA, for the carjacking. The court also sentenced defendant to a concurrent four-year term for the aggravated assault.

Defendant appealed. We affirmed defendant's conviction and sentence for aggravated assault, but reversed his other convictions, finding that the trial court erred by failing to instruct the jury on attempted theft as a lesser-included offense of carjacking and robbery. State v. Macon, No. A-1886-04 (App. Div. June 16, 2006) (slip op. at 4). We remanded the matter for a new trial on the carjacking and robbery charges. Id. at 12-13.

Defendant was thereafter tried before a jury. At the trial, Laura Jafolla (Jafolla) testified that, on November 27, 2001, at 1:00 a.m., she was awakened by the sound of her car starting outside of her home in Moorestown, New Jersey. Jafolla thought her son might have started the car. She went outside in her nightgown. She saw a stranger in the driver's seat.

The individual exited the car and approached Jafolla. She tried to run away but he punched her between the eyes, knocked her to the ground, and began to choke her. Jafolla kicked him and screamed until he ran away. She testified that she saw the assailant's uncovered face. She stated that he was approximately six feet tall, weighed 180 pounds, and had close-cut, short hair. Jafolla also stated that he was wearing dark pants, a dark shirt, and a red plaid flannel shirt.

Officer Richard Naff (Naff) of the Moorestown Police Department (MPD) responded to the scene. He testified that he saw Jafolla standing barefoot, in a nightgown and bleeding from her nose. Naff broadcast Jafolla's description of the perpetrator to the police in the area. Jafolla changed her clothes. Naff took custody of Jafolla's nightgown, and placed it in a brown paper bag to preserve it as evidence. Jafolla pointed out a package of cigarettes and lighter that were on the grass on the side of the house. Naff observed a cigarette inside the car on the floor underneath the steering wheel. An ambulance arrived shortly thereafter.

At around 1:20 a.m., while on routine patrol, Lieutenant Wayne O'Donnell (O'Donnell) spotted defendant, who matched Jafolla's description, near West Third and Union Streets. Defendant said that he was coming from a convenience store, where he had purchased cigarettes. According to O'Donnell, defendant was belligerent, smelled of alcohol and appeared to be intoxicated.

After learning that there was an outstanding warrant from Mt. Laurel Township for defendant's arrest, O'Donnell noticed that fresh blood was smeared on the back of defendant's hands, near his knuckles. O'Donnell asked defendant about these injuries, and he replied that he had fallen crossing the railroad tracks. O'Donnell confirmed that the warrant for defendant's arrest was still active. He took defendant into custody and confiscated a small pocketknife, keys, some loose change and a yellow flashlight.

Jafolla was driven in the ambulance to West Third and Union Streets and she observed defendant from the vehicle. She was asked whether defendant was the person who attacked her. Jafolla stated that she was not sure. Defendant was taken to the Moorestown police station, and later transferred to Mount Laurel because of the outstanding warrant. Defendant was processed there and then transported to the Burlington County jail, where he was confined. Jafolla was taken to a hospital.

Sergeant James Dever (Dever) of the MPD photographed and collected certain evidence at the scene. Dever also interviewed Jafolla at the hospital. Jafolla told him what happened. She said that the attacker had been wearing a red flannel shirt. She also said the man who attacked her was "not unlike" the person she saw from the ambulance. She added that he might have changed his clothes.

At around 4:30 a.m., Dever met with defendant at the Mount Laurel police station. He observed crescent moon-shaped scars or cuts around his fingers and photographed these injuries. Dever also photographed the items confiscated from defendant.

On November 28, 2001, Jafolla and her mother returned to the Moorestown police station. Jafolla told Dever that she was missing a yellow flashlight, a red flashlight and a set of keys. Dever recalled the yellow flashlight and set of keys among the items defendant had when he was taken into custody. Jafolla later identified the flashlight as one of a set that she recently purchased.

Dever thereafter watched a videotape recorded by a surveillance camera at a convenience store in Moorestown. The videotape showed defendant buying cigarettes at around 10:00 p.m. on the night of the incident. He was wearing a red flannel jacket. The jacket could not be located.

DNA and forensic analysis was performed on buccal swabs taken from the inside of defendant's and Jafolla's cheeks, as well as of stains on Jafolla's nightgown and two pairs of pants that defendant wore on the night of the incident. The State police could not find traces of blood on the first pair of defendant's pants, but found five different blood stains on the other pair of pants. Samples were taken from the front and rear of those pants.

Marlene Strauss (Strauss), a scientist in the State Police's deoxyribonucleic (DNA) laboratory, analyzed defendant's and Jafolla's buccal swabs and the samples taken from defendant's pants. She wrote a report that detailed her findings and conclusions. Strauss testified at the first trial; however, at the second trial, the State presented testimony from Strauss's supervisor, Edward Larue (Larue), the Assistant Laboratory Director for the DNA lab.

Larue stated that he was familiar with the analysis performed by the State Police forensic lab in this matter. He said that he was Unit Supervisor at the time, and therefore assigned the cases to the analysts. According to procedure, the analyst then analyzes the sample, determines the DNA profile and sets forth his or her findings in a report.

Larue said that, thereafter, the report and all of the related data is subjected to a review process. Two separate, qualified analysts review the data, draw their own conclusions as to what the data means, and compare their conclusions with those in the report. Larue noted that his initials appeared on the original report, which indicated that he had reviewed the data and the report's conclusions.

Larue further testified that the lab tested two DNA samples that were extracted from defendant's pants. Larue said that the samples were from two contributors, one major and one minor. According to Larue, defendant was the major contributor. He also stated that Jafolla could not be excluded as the minor contributor. He also noted that the minor profile was "consistent with" a profile that Jafolla possessed. He noted that Jafolla's DNA profile only occurs in one out of every 58.4 million Caucasians.

The parties stipulated that two cigarette butts were recovered from the crime scene and transported to the State Police Forensic Laboratory. The parties agreed that the cigarette butts had been analyzed and found to contain identifiable DNA, which matched defendant's DNA to a reasonable degree of scientific certainty.

The parties additionally stipulated that the nightgown Jafolla was wearing on the night of the incident had been taken to the State Police Forensic Laboratory. The nightgown was analyzed and determined to obtain the presence of blood, which contained DNA that matched Jafolla's DNA to a reasonable degree of scientific certainty.

Defendant did not testify on his own behalf. However, defendant called Enrique Hernandez (Hernandez) as a witness. Hernandez stated that he had been employed as a corrections officer at the Burlington County Jail for the previous ten and one-half years.

Hernandez said that on November 27, 2001, he was processing inmates being lodged into the jail. Hernandez stated that, according to his inventory sheet, when defendant entered the jail he was wearing a pair of blue pants, a blue shirt, grey sneakers, a blue sweatshirt, a necklace and an earring.

Hernandez also stated that defendant was in possession of seven keys, one form of identification and a small flashlight. Hernandez said that defendant's clothes and possessions would have been placed in a clear plastic bag. He did not know whether defendant had been wearing a second pair of pants underneath his blue pants.

In addition to charging the jury on carjacking and robbery, the court charged unlawful taking of a means of conveyance or joyriding and simple assault as lesser-included offenses of carjacking. The court also charged attempted theft and simple assault as lesser-included offenses of robbery. The jury found defendant guilty of carjacking and robbery.

Defendant was thereafter sentenced, and the court entered a judgment of conviction dated July 11, 1008. This appeal followed.

Defendant raises the following arguments for our consideration:





A. Despite Clear Instructions from the Appellate Division, and a Lengthy Effort by Defense Counsel to Clarify the Appellate Opinion, the Trial Judge Failed to Charge Attempted Theft as a Lesser-Included Offense of Carjacking.

B. The Jury Instructions on Robbery and the Lesser-Included Offense of Theft from the Person were Irreparably Confusing to the Jury, Thereby Depriving [Defendant] of a Fair Trial.




First, defendant argues that he was denied his constitutional right to confront the witnesses against him because the State admitted the report with Strauss's DNA analysis but did not call her as a witness at the second trial.

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The Confrontation Clause guarantees a defendant's right to confront those who "bear testimony" against him.

Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 (2004). Consequently, a witness's testimony against a defendant is not admissible unless the witness appears at trial, or is unavailable and the defendant had a prior opportunity for cross-examination. Id. at 54, 124 S. Ct. at 1365, 158 L. Ed. 2d at 194.

In Melendez-Diaz v. Massachusetts, 557 U.S. ____, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), the Court held that a forensic laboratory report, which stated that a suspected substance was cocaine, was testimonial for purposes of the Confrontation Clause because it contained declarations or affirmations that were made for the purpose of establishing particular facts. Id. at ____, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321.

The Court again addressed the issue in Bullcoming v. New Mexico, 564 U.S. ____, ____ S. Ct. ____, ____ L. Ed. 2d ____ (2011). In that case, the defendant was arrested and charged with driving a vehicle under the influence of intoxicating liquor. Id. at ____, ____ S. Ct. at ____, ____ L. Ed. 2d at ____ (slip op. at 2). The defendant refused to take a breath test and a sample of his blood was taken to determine its blood-alcohol concentration. Id. at ____, ____ S. Ct. at ____, ____ L. Ed. 2d at ____ (slip op. at 3).

The sample was taken to a laboratory, an analysis performed and a report issued with the results of the analysis. Ibid. In the report, the analyst stated that the seal of the sample had been received intact, the seal was broken in the laboratory and he had followed certain procedures detailed on the reverse side of the report. Ibid. The procedures required that the analyst note "'any circumstance or condition which might affect the integrity of the sample or otherwise affect the validity of the analysis.'" Id. at ____, ____ S. Ct. at ____, ____ L. Ed. 2d at ____ (slip op. at 3-4).

At the trial of the matter, the State did not present the analyst as a witness. Id. at ____, ____ S. Ct. at ____, ____ L. Ed. 2d at ____ (slip op. at 5). Rather, the State presented testimony from another scientist in the laboratory, who had neither observed nor reviewed the analysis. Id. at ____, ____ S. Ct. at ____, ____ L. Ed. 2d at ____ (slip op. at 6). The defendant's attorney objected, arguing that admission of the report without the analyst's testimony violated the defendant's Sixth Amendment right of confrontation. Ibid. The trial court overruled the objection and admitted the report. Ibid. Defendant was found guilty and his conviction was upheld on appeal. Ibid.

The Supreme Court held that, under Melendez-Diaz, the analyst's report was testimonial for purposes of the Confrontation Clause, and the report could not be admitted as evidence against the defendant unless the author of the report was unavailable and the defendant had a prior opportunity for cross-examination. Id. at ____, ____ S. Ct. at ____, ____ L. Ed. 2d at ____ (slip op. at 8-9). The Court rejected the State's contention that the "surrogate testimony" of the lab scientist satisfied the Confrontation Clause. Id. at ____, ____ S. Ct. at ____, ____ L. Ed. 2d at ____ (slip op. at 10).

The Court said that the analyst had not merely transcribed results generated by the gas chromatograph machine but had certified to other facts relating to the chain of custody and integrity of the testing procedures. Ibid. The Court stated that "[t]hese representations, relating to past events and human actions not revealed in raw, machine-produced data, are meat for cross-examination." Ibid.

The Court also stated that the "surrogate testimony" did not satisfy the Confrontation Clause because the person giving that testimony "could not convey" what the analyst "knew or observed about the events" addressed by his certification, or "expose any lapses or lies" by the analyst. Id. at ____, S. Ct. at ____, ____ L. Ed. 2d at ____ (slip op. at 12). The Court noted that the analyst had been placed on uncompensated leave and the defendant's attorney could have "asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for [the analyst's] removal from his work station." Ibid.

We conclude that under Bullcoming, the admission into evidence of the relevant pages from Strauss's report without her testimony violated defendant's right to confrontation under the Sixth Amendment. We note that, while Strauss testified at the first trial and was cross-examined in that proceeding, the State did not establish that Strauss was unavailable to testify at the second trial. The findings in Strauss's report are testimonial statements and defendant had a constitutional right to confront Strauss as the author of the statements.

We note that the Court's decision in Bullcoming was rendered by a 5-4 majority. Id. at ____, ____ S. Ct. at ____, ____ L. Ed. 2d at ____ (slip op. at 1). Justice Sotomayor, who was one of the five Justices in the majority, filed a concurring opinion in which she emphasized "the limited reach of the Court's opinion." Id. at ____, ____ S. Ct. at ____, ____ L. Ed. 2d at ____ (Sotomayor, J., concurring) (slip op. at 1). Justice Sotomayor pointed out that this was not a case in which testimony was provided by "a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue." Id. at ____, ____ S. Ct. at ____, ____ L. Ed. 2d at ____ (Sotomayor, Jr., concurring) (slip op. at 5).

The Justice noted that the testifying witness had not observed any part of the test. Ibid. The Justice added, "It would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results." Ibid.

In our view, Justice Sotomayor's concurring opinion does not warrant a conclusion that Larue's testimony was a constitutionally adequate substitute for Strauss's testimony. Larue may have reviewed Strauss's findings but he did not observe her tests of the DNA samples. Thus, we are satisfied that the holding of the majority opinion in Bullcoming applies in this case.

The State argues that Bullcoming does not support defendant's claim of a Confrontation Clause violation because Justice Sotomayor stated in her concurring opinion that the majority opinion did not address the "constitutionality of allowing an expert witness to discuss others' testimonial statements if the testimonial statements were not themselves admitted as evidence." Id. at , S. Ct. at , L. Ed. 2d at (slip op. at 6). The State points out that while the allele tables in Strauss's report were shown to the jury, they were not formally admitted into evidence. It is clear, however, that the tables in Strauss's report became evidence in the case when the court permitted them to be shown to the jury.

The State also argues that defendant waived any Confrontation Clause objection to Larue's testimony. We disagree. Before Larue testified, defendant's attorney informed the court, outside of the jury's presence, that he objected to Larue testifying instead of Strauss. Counsel stated that he wanted to preserve the issue. The court stated that the issue was preserved "for whatever . . . reason that's necessary."

Thereafter, defendant's attorney did not object when the State asked the court to qualify Larue as an expert. Counsel also consented to the showing of the allele tables in Strauss's report to the jury. We are nevertheless satisfied that defendant's attorney preserved his objection to the introduction of Strauss's DNA analysis without testimony from Strauss.

The State further argues that Larue's testimony and the introduction of Strauss's DNA analysis was permissible under State v. Rehmann, 419 N.J. Super. 451 (App. Div. 2011). In that case, the defendant was charged with driving under the influence of alcohol and other offenses. Id. at 453. At the trial, the State presented testimony about the defendant's blood alcohol content from a forensic scientist who did not test the blood sample. Ibid.

We held in Rehmann that the defendant had not been denied his constitutional right of confrontation, noting that the testifying forensic scientist observed the analyst conduct the test and "was with him 'every step of the way'[.]" Id. at 458. Rehmann is clearly distinguishable because, as we have indicated, LaRue did not observe Strauss perform the DNA analysis on the samples.

We accordingly conclude that the introduction of Strauss's DNA analysis without testimony from Strauss denied defendant his Sixth Amendment right to confrontation.


We turn to consider the State's contention that, even if the admission of Strauss's DNA analysis violated defendant's Sixth Amendment right of confrontation, the error was harmless. A violation of a defendant's federal constitutional right is reversible error, unless the error "was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967).

Confrontation Clause errors are subject to the Chapman harmless-error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674, 686 (1986).

Whether such an error is harmless in a particular case depends upon a host of facts, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. [Ibid.]

The State contends that, even without Strauss's DNA analysis, there was more than sufficient evidence to establish beyond a reasonable doubt that defendant committed the carjacking and robbery. The State notes that, while Jafolla did not definitively identify defendant, she showed the police a pack of cigarettes that her attacker left on the ground, and the cigarettes he left in the car.

Defendant stipulated that identifiable DNA had been found on two cigarette butts recovered at the crime scene and it matched defendant's DNA to a reasonable degree of scientific certainty. Moreover, Jafolla stated that the person who attacked her was wearing a red plaid flannel shirt, and a surveillance video from a nearby convenience store showed defendant wearing a red, flannel jacket and buying cigarettes.

Jafolla additionally testified that she scratched her attacker, an assertion that was corroborated by the cuts the officers observed on defendant's right hand and the fresh blood smeared on the back of his hands. Defendant also was found with a yellow flashlight, which Jafolla said was part of a set of flashlights she had recently purchased.

We agree with the State that there was strong circumstantial evidence showing that defendant was the person who committed the charged offenses. Even so, the DNA evidence provided critical support upon which the jury could find that defendant had inflicted bodily injury upon Jafolla or used force in the commission of the offenses, which is an essential element to both carjacking, in violation of N.J.S.A. 2C:15-2(a)(1), and robbery, in violation of N.J.S.A. 2C:15-1(a)(1). Nevertheless, we are not convinced that defendant was substantially harmed by his inability to cross-examine Strauss regarding the DNA testing procedure.

Defendant argues that cross-examination of Strauss "had the potential" of revealing "irregularities and improprieties" in Strauss's DNA testing procedure. However, defendant had the opportunity to cross-examine Strauss concerning her DNA tests in the first trial, and he has not pointed to any testimony elicited from Strauss in the first trial which indicated that her testing procedure was in any way irregular or improper. Defendant also has not identified any area of inquiry not addressed in the first trial. Defendant's assertion that cross-examination of Strauss could have undermined the validity of her DNA analysis rests on pure speculation. We accordingly conclude that defendant's inability to confront Strauss in the second trial concerning her DNA testing procedure was harmless error.


Next, defendant argues that the trial court erred in its instructions to the jury.

Defendant first contends that the trial court erred by failing to charge the jury on attempted theft as a lesser-included offense of carjacking. Defendant maintains that the charge was required by our decision in defendant's earlier appeal. We disagree.

In our prior opinion, we stated that the trial court erred by failing to charge the jury on attempted theft as a lesser-included offense of both the carjacking and robbery charges. Macon, supra, at 12. We noted that the elements of carjacking and robbery were similar and there was "nothing in the legislative history, policy or language of the carjacking statute that could support a conclusion that the Legislature intended it to be applied more expansively than the robbery statute." Id. at 8.

We also stated that there was a factual issue as to whether the theft, attempted theft or infliction of bodily injury or threat of bodily injury were part of a "continuous transaction[.]" Id. at 9. We explained that the jury could reasonably have viewed defendant's violent assault upon Jafolla as causally unrelated to his attempt to steal her car. Jafolla approached the car on the passenger side, where she observed defendant seated behind the wheel on the opposite side of the car. Based on this evidence, the jury could have found that defendant had an ample opportunity to flee the scene without any physical confrontation with Jafolla. However, rather than doing this, defendant assaulted Jafolla. If the jury found that this assault was committed in furtherance of defendant's attempt to steal Jafolla's car or to immobilize her so that she could not quickly report the crime to the police, the evidence would support a conviction for carjacking on the basis that defendant had "inflict[ed] bodily injury" upon Jafolla "during an attempt to commit the unlawful taking of a motor vehicle or during an immediate flight after the attempt." N.J.S.A. 2C:15-2a. The evidence also could support a conviction for robbery on the same basis. However, if the jury found that the attempted theft of the car had concluded when defendant got out of the car and that his purpose in attacking Jafolla was not to facilitate the theft or to flee the scene but rather to sexually assault her or to cause her bodily injury, it could have concluded that the attempted theft and assault were not part of a "continuous transaction" but rather separate and discrete criminal acts. Under this view of the evidence, the jury could have acquitted defendant of carjacking and robbery and found him guilty of only the lesser-included offenses of attempted theft and aggravated assault. [Id. at 11-12.]

We concluded that the court erred by failing to instruct the jury on attempted theft as a lesser-included offense of both carjacking and robbery. Id. at 12.

However, after our decision on defendant's appeal, the Supreme Court decided State v. Drury, 190 N.J. 197 (2007). In that case, the Court considered whether second-degree sexual assault may be elevated to first-degree aggravated sexual assault if committed during a carjacking. Id. at 200. The Court noted that, according to N.J.S.A. 2C:14-2(a)(3), sexual assault constitutes aggravated sexual assault if it is "'committed during the commission, or attempted commission'" of certain offenses, including robbery. Id. at 210 (quoting N.J.S.A. 2C:14-2(a)(3)).

The Supreme Court held that robbery and carjacking were separate offenses and carjacking was not a form of robbery. Id. at 210-11. The Court pointed out that in State v. Garretson, 313 N.J. Super. 348 (App. Div.), certif. denied, 156 N.J. 428 (1998), the court had affirmed the trial court's refusal to charge robbery and theft as lesser-included offenses to carjacking. Drury, supra, 190 N.J. at 216. The Court additionally pointed out that in State v. Matarama, 306 N.J. Super. 6, 21 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998), we concluded that the trial court did not err by failing sua sponte to charge robbery, assault and theft as lesser-included offenses of carjacking. Drury, supra, 190 N.J. at 216.

Here, the trial court charged the jury in conformity with Drury. The court recognized that based on the evidence presented at trial, the jury could find that defendant's attempt to steal Jafolla's car had concluded when he exited the car, and that his purpose in attacking Jafolla was not to facilitate the theft or to flee the scene but rather to sexually assault her or to cause her bodily injury.

Thus, the trial court instructed the jury, not on attempted theft, but rather on the attempted taking of a means of conveyance and assault as lesser-included offenses of carjacking. The court explained that, if the State had not proven the elements of carjacking, the jury could consider whether the State had proven that defendant attempted to commit the crime of taking a means of conveyance. The court also instructed the jury that it could consider simple assault as a lesser-included offense.

Therefore, the trial court gave the jury the option of finding defendant guilty of carjacking if it determined that the attempt to steal the car and the threat to inflict or the infliction of bodily harm upon Jafolla were part of a continuous transaction. The jury also was given the option of finding defendant not guilty of carjacking but guilty of either the unlawful taking of a means of conveyance or simple assault in the event the jury thought the attempt to steal the car and the assault were separate events. We are satisfied that a charge of attempted theft was not required.

Defendant additionally argues that the only lesser-included offense of robbery was the attempted theft of the car, and the trial court erred by charging attempted theft of the keys and flashlight as a lesser offense. Again, we disagree.

In this case, the court instructed the jury on robbery, employing the model jury charge for that offense. When the court instructed the jury on the attempted theft of movable property as a lesser-included offense, it stated that the property involved could be the car, the keys and/or the flashlight. Defense counsel agreed to the inclusion of the keys and the flashlight in the description of property that could have been taken.

We are convinced that the court erred by mentioning the keys and flashlight in the context of an attempted theft. However, the error was harmless. In our view, there is no merit to defendant's assertion that the inclusion of the keys and flashlight as potential objects of the attempted theft confused the jury. We are satisfied that the inclusion of the keys and flashlight in the instructions was not an error capable of producing an unjust result. R. 2:10-2.


Next, defendant argues that his sentence is manifestly excessive. We do not agree.

Here, the trial court found aggravating factors two, N.J.S.A. 2C:44-1(a)(2) (gravity and seriousness of harm to the victim); three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which defendant has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court stated that it gave little weight to aggravating factor two because Jafolla had not been seriously injured. The court found no mitigating factors.

The court merged the robbery conviction with the carjacking conviction for sentencing purposes and imposed a thirty-year term of incarceration, with an 85% period of parole disqualification, as prescribed by NERA.

Defendant argues that a sentence at the "high end" of the range for carjacking should be reserved for carjackings that involve the infliction of bodily injury or the use of force. He asserted that this case does not involve what he calls the "classic" carjacking "scenario," where a person is forcibly dispossessed of a car, often at gunpoint. He says that this was merely a third-degree theft that was elevated to a carjacking by the assault "purportedly" committed on the owner when she confronted him.

We reject defendant's assertion that there is a "classic" carjacking "scenario." Based on the evidence presented by the State, the jury could rationally find beyond a reasonable doubt that defendant had committed a carjacking, as defined in N.J.S.A. 2C:15-2(a)(1), that is, a carjacking which involved the infliction of bodily harm and/or the use of force.

We are therefore satisfied that defendant's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).



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