On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-10-4345.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011 -
Before Judges Messano, Yannotti and Kennedy.
An Essex County Grand Jury charged defendant Omar Austin with second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); four counts of first degree robbery while armed with a "handgun" of Juana Osuna, Christian Made, Sofia Rodriguez and Marisol Rosario, N.J.S.A. 2C:15-1 (counts two, three, four and five); first degree attempted murder of Sofia Rodriguez, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count six); aggravated assault upon Sofia Rodriguez, N.J.S.A. 2C:12-1(b)(1) (count seven); felony murder of Juana Osuna, N.J.S.A. 2C:11-3(a)(3)(count eight); murder of Juana Osuna, N.J.S.A. 2C:11-3(a)(1)(2)(count nine); felony murder of Christian Made, N.J.S.A. 2C:11-3(a)(3)(count eleven); murder of Christian Made, N.J.S.A. 2C:11-3(a)(1)(4)(2)(count twelve); unlawful possession of a firearm, a "handgun", N.J.S.A. 2C:39-5(b)(count fourteen); and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(count fifteen).*fn1
Following a jury trial, defendant was convicted on all counts of the indictment, with the exception of attempted murder of Sofia Rodriguez (count six) and aggravated assault upon Sofia Rodriguez (count seven). After appropriate mergers, defendant's aggregate sentence was two consecutive thirty-year terms of imprisonment, each with a thirty-year period of parole ineligibility. Defendant now appeals. After reviewing the record in light of the contentions advanced on appeal, we affirm.
We gather the following facts from the trial record. On the evening of May 18, 2001, Christian Made, Juana Osuna, Sofia Rodriguez, Roseanna Rodriguez and Marisol Rosario went to a club in Jersey City. They stayed until closing time during the early morning hours of May 19, 2001, and then entered a vehicle which Made drove, intending to go home. As they approached Newark from Route 280 westbound, Juana Osuna became ill and Made exited from the highway onto Spring Street in Newark, where he stopped, and everyone got out of the car.
Roseanna Rodriguez lived approximately two blocks away, and she decided to walk home. At this point, another car pulled up with three occupants. The driver and rear-seat passenger were male and the front-seat passenger was female. The driver, later identified as defendant, asked if everything was all right and the group said yes. Then, the rear-seat passenger, later identified as Green, leaned forward and whispered something to defendant. Marisol Rosario, witnessing this, immediately sensed trouble and told Sofia Rodriquez they should leave. As she said this, she saw the man sitting in the rear passenger seat get out of the car holding a small black gun. She then walked down the street and hid in a stairwell.
Kysheal Ivery, the female in the vehicle defendant was driving, testified that both Green and defendant got out of the car at this point. Green was holding a .380 caliber weapon and defendant was holding a nine millimeter handgun.
After Rosario walked from the scene, Sofia Rodriquez got into the driver's seat of the vehicle and called to Christian Made and Juana Osuna that they should leave. By this point, defendant and Green were near the rear of the car with Made and Osuna. Made shortly entered the front passenger seat and told Sofia Rodriguez that she should hand over her purse to the two individuals because they were "being robbed." Green then walked to the driver side of the vehicle, reached across Sofia Rodriquez, removed the ignition keys and shot her in the head. Ivery testified that she saw Green shoot Made and another female but she was uncertain who shot the female in the car. Green and defendant thereupon entered their own vehicle with two cell phones, thirty dollars, a gold chain and a pocketbook and drove off.
In the interim, Marisol Rosario, who was hiding by a stairwell, waited until the vehicle that defendant was driving pulled away and then she ran to her cousin's home.
Subsequently, Sofia regained consciousness and saw Made lying unresponsive to her right and Osuna lying behind the car in a pool of blood. She searched Made's pocket for his cell phone but it was not there. Her cell phone had been in the purse which was taken from her. She further testified that the perpetrator had taken ninety-five dollars from her as well as a gold chain and bracelets from her sister. Sofia managed to run to her home and then lost consciousness again.
Later that morning, police and emergency personnel responded to the scene. Four .380 caliber shell-casings and a projectile fragment were recovered from the scene. Later autopsies on Osuna and Made revealed that they died from gunshot wounds, and bullets were recovered from their bodies.
On May 26, 2001, defendant and Green were found in New York City in possession of handguns. Defendant had a nine millimeter semi-automatic handgun and Green was found in possession of a .380 caliber semi-automatic handgun. Ballistic tests linked the .380 caliber weapon to the shootings. The bullets retrieved from the bodies of Osuna and Made were determined to have been fired from that .380 caliber handgun, and the shell casings had markings showing that they too had been discharged from that weapon.
Defendant did not testify at trial and the only defense witness was Shanise Franks who testified that police questioned her regarding the events of May 19, 2001, and indicated that she fit the description of the girl who had been in the car with defendant and Green. She was never arrested.
On appeal defendant raises the following arguments:
THE JURY INSTRUCTIONS ON ACCOMPLICE LIABILITY INCORRECTLY TOLD JURORS THAT TO CONVICT DEFENDANT AS AN ACCOMPLICE TO AGGRAVATED MANSLAUGHTER, THEY WOULD HAVE TO FIND "THAT THE DEFENDANT'S PURPOSE WAS TO PROMOTE OR FACILITATE THE COMMISSION OF" THAT CRIME - A LEGAL IMPOSSIBILITY AND A DIRECT VIOLATION OF STATE V. BRIDGES AND STATE V. DARBY; MORE IMPORTANTLY, THE INSTRUCTION DID NOT PROVIDE THE PROPER MEANS (UNDER BRIDGES) TO RETURN A VERDICT FOR AGGRAVATED MANSLAUGHTER VIA AN ACCOMPLICE-LIABILITY THEORY, THEREBY EFFECTIVELY PRECLUDINIG A VERDICT FOR THAT LESSER OFFENSE. (Not Raised Below)
AS WAS THE BASIS FOR REVERSAL IN STATE V. GONZALEZ, THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT EVER DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT AS IT RELATED TO THAT OFFENSE; CONSEQUENTLY, THE DEFENDANT'S ...