On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-03-0733.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Maven.
In this appeal, we consider, among other things, the adequacy of the judge's charge to the jury, as well as his supplemental instructions during deliberations. We reverse because the judge failed to instruct the jury regarding defendant's right to remain silent until after the jury had stated it had reached a verdict and because, in answering a question posed by the deliberating jury, the judge precluded the jury's apparent request for a readback.
Defendant and co-defendant Antoine Leake were indicted and charged with: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3(f); fourth degree unlawful possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a); and third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1).
Defendant and Leake were tried together. The facts adduced during the trial revealed that, at approximately 11:00 p.m., on July 31, 2007, Perry Gray entered the Paradizio Club on Clinton Avenue in Irvington, had a few drinks, and left at approximately 11:30 p.m. As he was walking down Clinton Avenue, two men came up from behind Gray and robbed him. Gray assumed the two perpetrators had a gun, because he felt a metal object pressed against his back. He did not see the face of the person holding the metal object. While that man was standing behind Gray, the other went through Gray's pockets. Gray described the other culprit as "[s]horter than me, light-skinned, dreads," and as wearing a white T-shirt with beads around his neck. That man took Gray's cell phone, cigarette lighter, book bag, work boots, and some money. That man then told Gray to keep walking down the street; the two culprits walked off in the opposite direction.
After the robbery, Gray walked to the Irvington bus terminal on Springfield Avenue, where he told Irvington Police Officer Freddie Aleman that he had just been robbed outside the Paradizio Club. Gray described both assailants as short, "[o]ne was light-skinned with dreads and the other one was brown skinned," with short hair.
Albert Lampty also briefly patronized the Paradizio Club that evening. Lampty testified that he left the club sometime after 11:00 p.m. and walked to his nearby car on Sharon Avenue. As he was about to enter his car, another car pulled up. According to Lampty, two black men, one with shaved hair and one with dreadlocks, got out of their car and walked towards him. The dreadlocked man was holding a gun; he told Lampty to stay calm and let the other man search him. The other culprit took from Lampty his cell phone, Bluetooth earpiece, wristwatch, and wallet, which held his license, credit cards, and $130.
Meanwhile, Police Sergeant Latimer Tavares, Detective Craig Costello and State Trooper David Valente responded to Officer Aleman's call and approached the area. As they approached Sharon Avenue, Costello saw what he believed was a robbery taking place in the middle of the street. Tavares immediately stopped the vehicle, backed up and headed down Sharon Avenue.
Both Costello and Tavares observed a car in the middle of the street and three individuals: one with his hands in the air, another pointing a gun at him, and the third going through the victim's pockets. As Costello and Tavares approached, the man with the gun ran towards the car that was stopped in the middle of the street, threw the gun inside, and ran up the street, following the other culprit. Costello saw the culprits run between some houses on Sharon Avenue; he and Valente pursued on foot. Tavares "secured" the weapon thrown into the car, and radioed for back-up before providing assistance to Costello and Valente.
Costello admitted losing sight of the two men momentarily as they ran away, but he and Valente found them in the backyard of a nearby house on Sharon Avenue. Costello found and arrested one, whom he later identified as defendant, and Valente found and arrested the other, whom he later identified as Leake. Both were handcuffed and searched.
As Costello and Valente walked the two out of the backyard, Lampty identified both as the individuals who had robbed him. Lampty, however, was unable at the Wade hearing*fn1 or at trial to identify defendant and Leake as the individuals who had robbed him.
Tavares testified that the gun recovered from the scene was an Intertec 9-millimeter Uzi. A hollow-point bullet was in the chamber; the weapon was also loaded with a magazine containing four hollow point bullets and twenty-six other live rounds. Tavares handled the gun without wearing gloves, removing the ammunition from the chamber with his fingers. The handgun and bullets were never fingerprinted for evidence.
After they were arrested, defendant and Leake were placed in a police vehicle and taken back to the police station for processing. Valente searched Leake and found a Bluetooth earpiece and $265, including forty-five one dollar bills. Costello searched defendant and found a small bag of marijuana, a deck of what was suspected to be heroin, $95 dollars, a Motorola cell phone, a blue cigarette lighter, and a Kenneth Cole wristwatch. While at the police station, Lampty identified the Bluetooth earpiece and the wristwatch as his, and Gray identified the cell phone and blue cigarette lighter as his.
Witnesses were called by defendant to testify about his character. Defendant did not testify.
Defendant was convicted of second-degree conspiracy to commit robbery, first-degree armed robbery, second-degree robbery, third-degree possession of a weapon for an unlawful purpose, fourth-degree possession of an ammunition magazine, and fourth-degree resisting arrest. The trial judge denied defendant's motion for a new trial and, following appropriate mergers, sentenced defendant to: an extended thirty-year prison term with an eighty-five percent period of parole ineligibility, under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for first-degree armed robbery; a consecutive prison term of eight-and-one-half years, with a NERA eighty-five percent period of parole ineligibility, on the second-degree robbery conviction; and a concurrent prison term of four-and-one-half years on the third-degree unlawful possession of a handgun conviction.
Defendant appealed, presenting the following arguments for our consideration:
I. THE COURT ERRONEOUSLY FAILED TO GRANT A MISTRIAL WHEN ITS INITIAL JURY CHARGE WAS CONSTITUTIONALLY DEFICIENT, THE JURY INDICATED IT HAD REACHED A VERDICT BASED ON THE DEFICIENT CHARGE, AND THE COURT'S SUBSEQUENT PROVISION OF THE INSTRUCTION ERRONEOUSLY OMITTED FROM THE CHARGE DID NOT CLEARLY REQUIRE THE JURY TO DISREGARD ITS PRIOR SUBORDINATE AND ULTIMATE FINDINGS AND BEGIN ITS DELIBERATIONS COMPLETELY ANEW FROM THE STARTING POINT OF DEFENDANT'S PRESUMED INNOCENCE; ALTERNATIVELY, THE COURT'S REFUSAL TO ACCEPT THE JURY'S FIRST ANNOUNCED VERDICT WAS AN ABUSE OF DISCRETION.
A. Application for Mistrial.
B. Court's Obligation to Accept Jury's Initial Attempt to Return Verdict.
II. THE COURT ABUSED ITS DISCRETION BY PRECLUDING THE JURY'S REQUEST FOR A MEANS TO REVIEW THE TESTIMONIES OF FOUR EYEWITNESSES TO ALBERT LAMPTY'S ROBBERY, IN FAILING TO OFFER THE JURY THE OPPORTUNITY TO HEAR A TAPE RECORDING OF THOSE TESTIMONIES AND BY INDUCING A VERDICT BASED ON INADEQUATE DELIBERATIONS.
III. ALBERT LAMPTY'S OUT-OF-COURT IDENTIFICATION OF THE DEFENDANTS WAS IMPERMISSIBLY SUGGESTED BY THE POLICE CONDUCT SURROUNDING HIS IDENTIFICATION, AND EVIDENCE OF THAT IDENTIFICATION WAS THUS IMPROPERLY ADMITTED.
IV. THE COURT ERRONEOUSLY PERMITTED THE STATE TO ADDUCE A HEARSAY DESCRIPTION OF DEFENDANT BY PERRY GRAY (Not Raised Below).
V. THE COURT ERRONEOUSLY FAILED TO CHARGE POSSESSION OF STOLEN PROPERTY AS A LESSER-INCLUDED OFFENSE TO THE CHARGES OF ARMED ROBBERTY OF PERRY GRAY AND ALBERT LAMPTY (Partially Raised Below).
VI. DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL, AND HIS CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE.
VII. THE COURT'S JURY INSTRUCTIONS ERRONEOUS[LY] PROVIDED SUPER[S]EDED INSTRUCTIONS ON DEFENDANT'S ELECTION NOT TO TESTIFY WHICH SUGGESTED  HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT AND FAILED TO SPECIFY THE SUGGESTIVE CIRCUMSTANCES WHICH RENDERED ALBERT LAMPTY'S OUT-OF-COURT IDENTIFICATION SUGGESTIVE
(Partially Raised Below).
VIII. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We reverse and remand for a new trial on the grounds set forth in Points I and II.
Defendant contends that the trial judge erred in denying his motion for a mistrial that was based on the inadequacies of the initial jury charge. That is, defendant argues that the charge was constitutionally deficient because it contained no instructions regarding defendant's election not to testify -- a circumstance that was not remedied until the jury had deliberated to the point it was ready to deliver its verdict. Defendant also correctly asserts that this error was further aggravated by the subsequent charge, which failed to instruct the jury to begin its deliberations anew -- a circumstance that was not remedied until further deliberations had occurred. We agree that the erroneous charge and the subsequent faulty instructions require a new trial.
Our consideration of these circumstances requires close examination of portions of the judge's charge to the jury, as well as the questions posed by the jury thereafter and the ...