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State of New Jersey v. Jerome Farnville

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 15, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEROME FARNVILLE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-08-0789.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 20, 2011 -

Before Judges Payne, Simonelli and Hayden.

A grand jury indicted defendant Jerome Farnville for two counts of first-degree felony murder, N.J.S.A. 2C:11-3a(3) (counts one and two);*fn1 first-degree robbery, N.J.S.A. 2C:15-1a(1) and (2) (count three); second-degree robbery, N.J.S.A. 2C:15-1a(1) and (2) (count four); second-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2 (count five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4.1a (count six); third-degree unlawful acquisition of a firearm, N.J.S.A. 2C:39-10 (count seven); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2a(1) and N.J.S.A. 2C:15-1 (count ten); second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2a(1) and N.J.S.A. 2C:18-2 (count eleven); and third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b (count twelve).

Following a jury trial, defendant was convicted on count one of first-degree felony murder, on count three of first-degree armed robbery, on count four of second-degree robbery, on count seven of third-degree unlawful acquisition of a firearm, and on counts ten and eleven of second-degree conspiracy to commit robbery and burglary. In convicting defendant on count three the jury did not find beyond a reasonable doubt that he was armed with a shotgun. The jury also found defendant not guilty on count six of possession of a shotgun for an unlawful purpose, and on count twelve of possession of a sawed-off shotgun. At sentencing, the trial judge merged the convictions on counts four and ten with count one and sentenced defendant to an aggregate sixty-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

THE TRIAL COURT ERRED, TO DEFENDANT'S GREAT PREJUDICE, IN REFUSING TO ADMIT AN EXCITED UTTERANCE THAT A CO-DEFENDANT WAS THE SHOOTER. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

POINT II

THE STATE ENGAGED IN MISCONDUCT BY INTENTIONALLY PRESENTING HIGHLY PREJUDICIAL VICTIM-IMPACT TESTIMONY, AND THE TRIAL COURT FAILED TO ATTEMPT TO REMEDIATE IT, TO DEFENDANT'S GREAT PREJUDICE. U.S. CONST., AMEND[]. XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

POINT III

THE OFFICERS VIOLATED THE DEFENDANT'S RIGHT TO SILENCE AND TO COUNSEL BY CONTINUING TO QUESTION HIM AFTER HE HAD REQUESTED COUNSEL, NECESSITATING SUPPRESSION. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

POINT IV

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

In a pro se supplemental brief, defendant raises the following contention:

POINT I

THE TRIAL COURT COMMITTED PLAIN ERROR FOR NOT HAVE TAKEN JUDIC[I]AL NOTICE[] THEREBY[] DEPRIVING APPELLANT OF DUE-PROCESS-OF-LAW, U.S. CONST. A[MENDS]. 6, 14; N.J. CONST. (1947), ART. 1, PAR. 10. (NOT RAISED BELOW)

We reverse defendant's first-degree robbery conviction, remand for the entry of an amended judgment of conviction to remove that conviction, and affirm in all other respects.

On September 12, 2005, Hamilton Blackshear (Blackshear) was shot and killed outside of the home of his son, Albert Blackshear (Albert). Prior to the shooting, Albert had been involved in several disputes with Kenneth Bartee (Bartee) about a purported sexual relationship between Albert and Bartee's girlfriend, which culminated in a physical altercation between the two at a party on September 10, 2005. In retaliation, Albert set fire to Bartee's grandmother's house, where Bartee had been living.

On September 12, 2005, Bartee broke into Albert's house and stole his clothing, electronics, and other valuables. Later that evening, Blackshear accompanied Albert to the house to retrieve Albert's remaining property, and change the locks. After Blackshear exited the house, Albert heard "a loud noise like a bang." Blackshear ran back into the house, told Albert he had been shot, and fell to the floor in the living room. Albert called 9-1-1. Blackshear later died from his gunshot wounds.

Detective Rick Pierce of the Bridgeton Police Department responded to the scene of the shooting. Albert told the detective that he had recently been involved in a fight with Bartee at a party, and gave him the names of possible suspects. Detective Pierce narrowed the suspects to defendant, Bartee, Andrew Swinton (Swinton), William Rothmaller (Rothmaller, a/k/a Pop Tart), Archie Perry (Perry), Charles Clark (Clark), and Brian Baldwin (Baldwin).

In a taped statement Clark gave the police on September 27, 2005, he said that he, Bartee, Perry, Baldwin, and Hector Ruiz drove to Albert's house in Perry's van because Bartee wanted to fight Albert. They met defendant, Swinton, and Rothmaller on the way. The men arrived at Albert's house and exited their respective vehicles. As they were walking toward the house, Clark saw that both defendant and Swinton had sawed-off shotguns. When Clark reached the bushes by the side of the house, he saw a man exit the back door, and then heard a gunshot. He did not see who had fired that shot, but said "it was between [Swinton] and [defendant]." Clark saw defendant fire a second shot. After the second shot, Clark and Bartee ran back to Perry's van and left the area. Clark did not know that someone had been killed until he read about it in the newspaper the next day. Swinton threatened to shoot anyone and their family who talked about the shooting, and stated that he was going to shoot Perry and Perry's father because they had already gone to the police.

In a taped statement Perry gave to the police on September 30, 2005, he said that on September 12, 2005, he was at Baldwin's house when Bartee asked Perry to give him a ride to Albert's house so that Bartee could steal Albert's dog. Clark, Baldwin, and Ruiz joined them. As the five men were leaving Baldwin's house in Perry's van, Bartee received a call from Swinton. The men eventually met up with Swinton, who had defendant and Rothmaller in his car. The two vehicles then proceeded to Albert's house.

Bartee had told Perry that there would be no one at Albert's house; however, if Albert was there, Bartee was going to "fight him." When the group arrived at the house, the lights were on, the doors were open, and there was someone in the house. Bartee called Swinton, and the two decided to "go ahead" with their plan. Perry told Bartee that he did not want to be involved, dropped Bartee and Clark off at Swinton's vehicle, and drove down the street and parked. Perry saw Swinton and two other men get out of Swinton's car, and noticed the man in the back seat reach over and grab a long black object that looked like a sawed-off shotgun. The three men then ran toward Albert's house. Within ten or fifteen minutes, Perry heard two gun shots that sounded exactly the same, indicating they came from the same gun. Bartee and Clark then ran back to Perry's van and got inside. Perry said that they were "[n]ervous, . . . they tell me they think Pop Tart shot a victim. They didn't even know who got shot." The three men then drove from the scene. During the drive, Bartee said "this wasn't supposed to happen. I can't believe this happened[,]" and Clark said he was "scared and nervous." The next day, Bartee told Perry that Albert's father had been killed, and "the shooter gave out a message that if anyone tells he was gonna get them before he goes in." Clark told Perry to "just keep your mouth shut. You had nothing to do with this."

Based on Clark's and Perry's statements, Detective Pierce concluded there was probable cause to arrest defendant, Swinton, and Rothmaller, the individuals that Clark and Perry had identified. The three men were arrested on October 5, 2005, brought to police headquarters for questioning, and placed in separate rooms.

Defendant received and waived his Miranda*fn2 rights prior to any questioning by Detective Pierce and Detective George Chopek. He denied involvement in, or knowledge of, the shooting, and said that he had learned about it from a newspaper article. Detective Pierce told defendant that he had been implicated in the shooting, and Swinton and Rothmaller were giving statements to that effect. Defendant did not believe the detective and said he would "roll the dice" and not give a statement. Defendant then invoked his right to remain silent and requested an attorney. At that point, all questioning about the case stopped. Thereafter, the detectives "probably made small talk," told defendant they believed he was being untruthful, and "very possibly" said to him "that [they] were interested in hearing his side of the story." Detective Pierce asked defendant to call him if he changed his mind about giving a statement.

Detective Calabrese then took defendant to the processing area, where Swinton was being processed. Detective Calabrese reported to Detective Pierce that defendant overheard Swinton tell another detective that he was going to take the detective to retrieve the guns, and that defendant had a startled look on his face when he heard this. The detectives had not planned for defendant to overhear Swinton's statement.

On October 6, 2005, defendant called the Criminal Investigation Division of the Bridgeton Police Department and asked to speak to Detectives Pierce and Chopek. Defendant did not speak to the detectives that day. He spoke to them on October 7, 2005, at the Prosecutor's Office, where, after receiving and waiving his Miranda rights, he gave a taped statement explaining what had occurred the night of the shooting. According to defendant, Bartee called him and said that he wanted defendant, Swinton, and Rothmaller to go with him to Albert's house to "beat up or rob" Albert. Prior to arriving at Albert's house, the three men, who were in Swinton's car, met up with Bartee, who was in Perry's van. Bartee exited Perry's van, went to Swinton's car, and obtained a loaded shotgun from defendant, who was sitting in the rear seat. Bartee gave defendant a .357 caliber handgun, which defendant put in his waistband. Swinton may have had a sawed-off shot gun as well. Swinton's car then followed Perry's van to Albert's house. When they arrived there, they squatted down in the nearby brush. Defendant saw a man exit the back door, heard a shot from a shot gun, and then ran back to Swinton's car. Defendant took the gun out of his waistband when he was running back to the car. Defendant was not sure if it was Bartee's or Swinton's shotgun that was fired, but he thought it was Bartee's "[c]ause it . . . was his beef[,]" and Bartee was the one who was upset with Albert for trying to burn down his grandmother's house. The next day defendant read in the newspaper that someone had been killed.

Before trial, defendant and co-defendants Bartee, Swinton, Rothmaller, and Baldwin, filed a motion to suppress their statements to the police. Following a Miranda hearing, the trial judge denied defendant's motion, holding that defendant knowingly, voluntarily and intentionally waived his rights. The judge found that the detectives had stopped questioning defendant after he requested an attorney; defendant subsequently re-initiated contact with the detectives and asked to speak to them; defendant received his Miranda rights a second time before giving the statement; and he acknowledged that he understood his rights by initialing the Miranda card.

Defendant was tried separately from his co-defendants. Police Officer Dominick Patitucci testified that he responded to the scene following the shooting. He also executed a search warrant on defendant's residence and seized a .357 caliber handgun containing ammunition, and one shotgun shell.

Detective Michael Donato testified that, with Swinton's sister's consent, he searched her apartment. During the search, Swinton's sister directed him to a duffle bag containing two shotguns matching the description of the weapons used in the shooting. The officer also discovered shotgun shells.

State Trooper Randolph Toth of the New Jersey State Police Ballistics Unit testified that because of the types of barrels on the guns retrieved during the searches, the bullets that killed Blackshear could not be identified as having come from a particular gun.

Clark and Perry testified about their taped statements, as well as their and defendant's involvement in what had occurred the night of the shooting.

I.

At trial, Perry testified on cross-examination that Bartee and Clark had returned to the van within one to two minutes after Perry heard the gunshots. When asked by defense counsel if Bartee was excited, Perry said, "[n]o, he's not excited . . . not at all, no. . . [n]obody was excited." When asked if either Bartee or Clark appeared nervous, Perry said "[n]o. They seemed more concerned on what just happened." Perry later conceded that he had said in his taped statement that Bartee and Clark were nervous when they returned to the van.

Defense counsel sought to introduce Perry's statement that Bartee told him "they think Pop Tart shot a victim. They didn't even know who got shot." Defense counsel argued that the statement was admissible as an "excited utterance" to show that Rothmaller, not defendant, was the shooter. The judge barred the statement, finding that the evidence did not establish it was an excited utterance. Defendant contends in Point I that this was error. We disagree.

"We review a trial judge's evidentiary determinations under an abuse of discretion standard, provided that the judge's rulings are not inconsistent with applicable law." State v. Belliard, 415 N.J. Super. 51, 87 (App. Div. 2010), (citing State v. Buda, 195 N.J. 278, 294 (2008)), certif. denied, 205 N.J. 81 (2011). An "abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States ex rel. USDA v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

New Jersey Evidence Rule 803(c)(2) excepts from the hearsay rule "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." In determining whether a statement is an excited utterance, the court must consider several pertinent factors, including

(1) the amount of time that transpired between the initial observation of the event and the subsequent declaration of the statement; (2) the circumstances of the event; (3) the mental or physical condition of the declarant; (4) the shock produced; (5) nature of the statement; and (6) whether the statement was made voluntarily or in response to a question. [Buda, supra, 195 N.J. at 294 (quoting Truchan v. Sayerville Bar & Restaurant, 323 N.J. Super. 40, 48-49 (App, Div. 1999)).]

To be an excited utterance, the determinative element is not the amount of time that has elapsed but whether the declarant is still "under the stress of excitement" caused by the event when the statement was made. Belliard, supra, 415 N.J. Super. at 88; State v. Baluch, 341 N.J. Super. 141, 182 (App. Div.), certif. denied, 170 N.J. 89 (2001). Evidence that the declarant appeared concerned and confused at the time of the statement is insufficient to make the statement an excited utterance. Belliard, supra, 415 N.J. Super. at 88.

The shooting in this case was clearly a "startling event." N.J.R.E. 803(c)(2). However, nothing in the record supports the conclusion that Bartee was "under the stress of excitement" when he made the statement to Perry. Rather, Bartee only appeared concerned and nervous about what had occurred. Thus, because an essential element of an excited utterance was not present, the judge's decision did not constitute an abuse of discretion. N.J.R.E. 803(c)(2).

II.

Defendant contends in Point II that the prosecutor engaged in misconduct by intentionally eliciting improper victim-impact testimony from Albert about his father. Defendant also contends for the first time on appeal that the judge erred in failing to give the jury a curative instruction.

"'[P]rosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial.'" State v. Wakefield, 190 N.J. 397, 437-38 (2007) (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "Thus, '[t]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" Id. at 438 (quoting Papasavvas, supra, 163 N.J. at 625).

Also, the Court should consider whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Next, [the] court must also decide whether the prosecutor's misconduct constitutes grounds for a new trial . . . because, in order to justify reversal, the misconduct must have been so egregious that it deprived the defendant of a fair trial. In sum, to warrant a new trial the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." [Ibid. (citations and internal quotation marks omitted)].

Further, "[w]here . . . the victim's character has no bearing on the substantive issue of guilt or the penalty to be imposed, the prosecution may not comment on the evidence in a manner that serves only to highlight the victim's virtues in order to inflame the jury." State v. Williams, 113 N.J. 393, 451-52 (1988).

Relying on State v. Pennington, 119 N.J. 547 (1990), overruled on other grounds, State v. Brunson, 132 N.J. 377, 392 (1993), and Williams, supra, defendant argues that the following exchange constitutes improper victim-impact testimony:

[Assistant Prosecutor]: Okay. At some point -- well, your father is Hamilton Blackshear or was Hamilton Blackshear. Can you tell me a little about him? Where did he work? What kind of person was he? [Albert]: He was like the best person I ever knew. And like, it's hard to say.

Like, he was -- I never met anybody like him. He would give you everything. Like, his whole life he just did --[Defense Counsel]: Judge, excuse me. I have an objection to relevance at this point.

The Court: I'm sorry? You have an objection? [Defense Counsel]: The objection is relevance. [Assistant Prosecutor]: I'm not trying to unduly prejudice the jury but I think they have a right to know the person we're talking about. And I don't want to go into all particular acts of kindness or anything like that. But it was his father and I think the jury should know the man. [The Court]: All right. I'm going to sustain the objection. Let's get on with the events that are alleged to have occurred.

Except for this short exchange, there was no further mention of Blackshear's character. This is in stark contrast to what occurred in Pennington and Williams. In Pennington, the prosecutor "focused on the victim" during his opening remarks, instructing the jury to remember that "[the victim] cannot come into this courtroom in flesh and blood and tell you what happened to her. She will rely, because she had been robbed by [defendant] of voice and memory, she will rely on the voices and memories of those who loved her, who will tell you how she was murdered by that cruel man." Pennington, supra, 119 N.J. at 567. The prosecutor carried this theme throughout his guilt-phase summation, and during his closing remarks told the jury it would "'insult' the victim and 'dishonor' the State's witnesses if it accepted defendant's version of the facts and did not find him guilty of capital murder." Id. at 568. In Williams, the prosecutor "made considerable mention" of the victim's background and character during her opening and closing statements, and in her examination of the victim's mother in the guilt and penalty phases of the trial. Williams, supra, 113 N.J. at 405, 446-47. The testimony here does not compare to the magnitude of the statements made in Pennington and Williams.

Defendant also cites State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993), and State v. Rodriquez, 365 N.J. Super. 38 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004); however, these cases lend no support to his argument. In Marshall, the prosecutor said in his guilt-phase summation that "[the victim] had a right to live her life in full, to watch her boys continue to grow, to watch them graduate from school, to get married and have families of their own." Marshall, supra, 123 N.J. at 163. The Court found that these comments "were much more circumscribed and far less emotional that those in either Williams or Pennington." Id. at 163. The Court concluded "that those references to the victim that were unrelated to any substantive issues were neither extensive nor inflammatory, and we find them harmless beyond a reasonable doubt." Ibid. In Rodriguez, the prosecutor said in his guilt-phase summation that the victim was "an athletic young pretty mother of two." Rodriguez, supra, 365 N.J. Super. at 48. We found that standing alone, this comment did not merit a new trial. Id. at 49.

Here, the reference to Blackshear's character was neither extensive nor inflammatory. Although improper, we conclude that it was harmless beyond a reasonable doubt.

In addition, although defendant did not request, and the judge did not provide, a curative instruction, the following final jury instructions guided the jury against evoking sympathy or outrage:

Now, that as jurors it's your duty and I remind you that you took an oath to weigh the evidence calmly, without passion, prejudice or sympathy.

Any influence caused by these emotions has the potential to deprive both the State and the [d]efendant of that which you promised them, a fair and impartial trial by fair and impartial jurors.

Because you took an oath to not have sympathy enter into your deliberations and I remind you of that. . . .

Jurors are presumed to have followed the court's instructions in the absence of evidence demonstrating otherwise. State v. Martini, 187 N.J. 469, 477 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007). There is no such evidence here.

III.

Defendant contends in Point III that Detective Pierce pressured him to abandon his decision to invoke his Miranda rights by engaging in small talk after defendant invoked his rights, and telling defendant that the police believed he was being untruthful, were interested in hearing his side of the story, and defendant should call the detective if he changed his mind about giving a statement. This contention lacks merit.

"A police officer must 'scrupulously honor' the invocation of the right to counsel. This requires the interrogating officer to cease all questioning until an attorney is present." State v. Melendez, 423 N.J. Super. 1. 29 (App. Div. 2011); see also State v. Burno-Taylor, 400 N.J. Super. 581, 606 (App. Div. 2008) (stating that police must "scrupulously honor" a defendant's right to remain silent). "Once a defendant invokes his or her right to silence, interrogation can resume only if the police administer a fresh set of Miranda warnings. That rule, however, does not apply if the defendant initiates a dialogue about the crime." State v. Harvey, 151 N.J. 117, 221-22 (1997) (citations omitted), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). In addition, "[a]n accused who has expressed his desire to deal with the police only through his counsel is not subject to further interrogation until counsel has been made available, unless the accused himself initiates further communication." State v. Wright, 97 N.J. 113, 122 (1984) (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884, 68 L. Ed. 2d 378, 386 (1981)).

A defendant's waiver of Miranda rights must be made voluntarily, knowingly, and intelligently. State v. Bey, 112 N.J. 123, 134 (1988). In order to survive a motion to suppress a statement on Miranda grounds, the State must prove beyond a reasonable doubt that the defendant provided a voluntary and uncoerced waiver of his right to remain silent. State v. Knight, 183 N.J. 449, 462 (2005). In determining whether a statement is voluntary, courts consider the totality of the circumstances, including the characteristics of the accused and the details of the interrogation. Ibid.; Bey, supra, 112 N.J. at 134-35. "Relevant factors include the defendant's age, education, intelligence, advice concerning his constitutional rights, [the] length of detention, . . . the nature of the questioning," Bey, supra, 112 N.J. at 135, the defendant's "previous encounters with law enforcement, and the period of time between [the] 'administration of the [Miranda] warnings and the volunteered statement[,]'" Knight, supra, 183 N.J. at 463 (last alteration in original) (citation omitted).

In reviewing a defendant's motion to suppress a statement to police, we must "'uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We will not disturb a trial court's factual findings unless "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "[O]n appeal 'we may only consider whether the motion to suppress was properly decided based on the evidence presented at that time.'" State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999) (quoting State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 (1971)).

Here, no questioning occurred and defendant made no incriminating statements after he invoked his Miranda rights on October 5, 2005. Defendant initiated further communication with the detectives about the crime without any coercion or pressure on the detectives' part. Defendant voluntarily came to the Prosecutor's Office, where he received and waived a fresh set of Miranda warnings before giving his statement. We are satisfied that the record amply supports the judge's conclusion that defendant knowingly, voluntarily and intentionally waived his rights.

IV.

In his pro se supplemental brief, defendant contends for the first time on appeal that the verdict was against the weight of the evidence on count four (second-degree robbery), count ten (second-degree conspiracy to commit robbery), and count eleven (second-degree conspiracy to commit burglary). Because defendant never sought a new trial below on these counts, he is precluded from raising these issues on appeal. State v. Johnson, 203 N.J. Super. 127, 133 (App. Div.) (citing R. 2:10-1; State v. McNair, 60 N.J. 8, 9 (1972)), certif. denied, 102 N.J. 312 (1985); State v. Kyles, 132 N.J. Super. 397, 410 (App. Div. 1975); see also R. 3:20-1.

Defendant also contends for the first time on appeal that there was plain error in the jury charge on count three (first-degree robbery) and count four (second-degree robbery). He argues that the judge failed to charge that the jury must first find that he had taken a "substantial step" toward the theft before it could find that he "attempted" to commit the theft. Examining the charges as a whole, however, we are satisfied there was no error. R. 2:10-2; Belliard, supra, 415 N.J. Super. at 66. The judge fully explained the legal definition of attempt in accordance with the Model Jury Charges.

Defendant also contends for the first time on appeal that the jury rendered an inconsistent verdict on count three, first-degree robbery. We will consider this contention on the merits in the interest of justice. State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993).

"A person is guilty of robbery if, in the course of committing a theft, he: (1) [i]nflicts bodily injury or uses force upon another; or (2) [t]hreatens another with or purposely puts him in fear of immediate bodily injury . . . ." N.J.S.A. 2C:15-1a(1) and (2).

Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon. [N.J.S.A. 2C:15-1b.]

With respect to the first- and second-degree robbery counts, the jury verdict sheet asked the jury whether it found that in the course of committing or attempting to commit a theft, [defendant] did use force and/or inflict bodily injury upon Albert . . . and/or purposely threatened bodily injury and/or purposely put Albert . . . in fear of immediate bodily injury, contrary to the provisions of N.J.S.A. 2C:15-1a (1) and (2)

The jury found defendant guilty on both counts. However, with respect to the first-degree robbery count, the verdict sheet only asked the jury whether it found beyond a reasonable doubt that defendant was armed with a shotgun. The jury answered "No."*fn3 The verdict sheet did not ask the jury whether defendant was armed with a handgun. Thus, the verdict sheet was incomplete and did not contain all questions that could have led the jury to find defendant guilty of first-degree robbery beyond a reasonable doubt.*fn4 Accordingly, we reverse defendant's conviction on count three.

Our decision does not affect defendant's sentence. At sentencing, the judge made no reference to the conviction on count three. Instead, the judge merged counts four and ten into count one, and sentenced defendant on the felony murder conviction. However, the judge included count three in the judgment of conviction. Accordingly, we remand for removal of that count from the judgment of conviction.

V.

Defendant challenges his sentence in Point IV. He argues that the judge should have given little weight to aggravating factors N.J.S.A. 2C:44-1a(3), "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," and N.J.S.A. 2C:44-1a(9),"[t]he need for deterring the defendant and others from violating the law[.]" Defendant also argues that the judge should have considered his relative youth at the time of the crime,*fn5 and the fact that he was not convicted of knowing or purposeful murder and weapon possession, which indicated the jury did not believe he was the shooter. He asks us to reduce his sentence to thirty years. We decline to do so.

Our review of the length of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). We "should 'assess the aggravating and mitigating factors to determine whether they were based upon competent credible evidence in the record[,]'" and "should not 'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). We must also "'determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case make the sentence clearly unreasonable so as to shock the judicial conscience.'" State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

Here, the record supports the judge's findings and application of aggravating factors 3 and 6. As a juvenile, defendant had nineteen arrests, and eight adjudications of delinquency, including one for possession of firearms, and two for arson. He also was committed to Jamesburg at the State level of incarceration. As an adult, defendant had nine arrests, two disorderly persons convictions, and a violation of probation. The judge properly relied on defendant's criminal record, including his juvenile record, for finding and applying these aggravating factors. See, e.g., State v. Miller, 411 N.J. Super. 521, 534 (App. Div. 2010) (upholding the trial court's application of factors 3, 6 and 9 when it "focus[ed] on defendant's extensive juvenile record and continued involvement in criminal conduct despite periods of supervision in the community and at Jamesburg"), aff'd, 205 N.J. 109 (2011).

The record also supports the judge's finding and application of aggravating factor 9. Defendant has a history of committing crimes that includes the unlawful possession of weapons. General deterrence is always appropriate, where, as here, the less common need for specific deterrence is especially strong.

The record does not support any mitigating factors, and the judge properly declined to consider defendant's age. Defendant was not a juvenile at the time of the offense, and had prior adult convictions. See State v. Tanksley, 245 N.J. Super. 390, 397 (App. Div. 1991); State v. Pindale, 249 N.J. Super. 266, 289 (App. Div. 1991). We conclude that defendant's sentence is supported by the aggravating factors and is within the statutory range for felony murder. The sentence does not "shock the judicial conscience."

Affirmed in part, reversed in part, and remanded for entry of an amended judgment of conviction in accordance with this opinion.


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