On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-2629.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Yannotti.
Defendant Michael Lowman appeals from an order entered by the Law Division on October 13, 2010, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); third-degree making terroristic threats, N.J.S.A. 2C:12-3(a) (counts three and four); and fourth-degree hindering his own apprehension, N.J.S.A. 2C:29-3(b)(4) (count five).
Prior to trial, the court granted the State's motion to dismiss counts one, three, and four. Defendant was tried on the remaining counts. At the end of the State's case, the court granted defendant's motion to dismiss count five.
Defendant was found guilty of first-degree robbery, as charged in count two. He was sentenced to fifteen 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. Defendant appealed and raised the following issues:
THE JURY INSTRUCTION ON ARMED ROBBERY OMITTED THE MENTAL STATE OF "KNOWINGLY" WITH RESPECT TO THE ELEMENT OF SIMULATION OF A WEAPON BY WORDS AND GESTURES -- A CRITICAL ERROR WHERE THE JURY COULD HAVE DOUBTED WHETHER THEY HAD TO FIND THAT THE DEFENDANT
KNOWINGLY OR PURPOSELY SIMULATED THE POSSESSION OF A WEAPON (Not raised below). POINT II:
THE TRIAL COURT ERRED IN IMPOSING AN EXCESSIVE SENTENCE.
In addition, defendant filed a supplemental pro se brief in which he raised the following points:
THE TRIAL COURT ERRONEOUSLY CONVICTED DEFENDANT OF FIRST DEGREE ROBBERY BASED ON THE SUBJECTIVE REACTION OF A CLAIMANT AFTER THE FACT -- NOT THE VICTIM -- WHICH IS CONTRARY TO LAW.
THE TRIAL COURT ERRED IN THE VERDICT SHEET AND JURY INSTRUCTION WHEN CONFLATING ISSUES OF FLIGHT, ROBBERY, WITNESS [AND] VICTIM, TO PERMIT THE ELEVATION OF THE DEGREE OF THE OFFENSE, WITHOUT SPECIFICITY BY THE JURY, AND AGAINST THE STRICT WORDING OF THE STATUTE.
THE RE-INSTRUCTION GIVEN TO THE JURY AFTER THEIR START OF DELIBERATIONS REGARDING "UNANIMITY", WHICH WAS REQUIRED FOR THE INTEROGATORY "1A" ON THE VERDICT SHEET, WAS INSUFFICIENT AND ...