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State of New Jersey v. Charly Wingate

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 30, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHARLY WINGATE, A/K/A MAX B, CHARLEY WINGATE, BIG GAVEL WINGATE, MAX B. WINGATE, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELVIN LEERDAM, A/K/A SIMS, FOO, KELVIN ANTOINE LEERDAM, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-06-1109.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 27, 2012

Before Judges Nugent, Carchman and Maven.

In these back-to-back appeals, consolidated for purposes of this opinion, defendants Charly Wingate and Kelvin Leerdam seek to overturn their convictions and sentences for kidnapping, robbing, and murdering David Taylor; kidnapping and robbing Allan Plowden; and kidnapping and robbing Giselle Nieves. Wingate argues that his conviction should be reversed because the trial court erroneously declined to sever his trial from Leerdam's trial, misapplied its discretion when it refused to excuse a juror for cause, and improperly instructed the jury. Wingate also argues that the court erroneously denied his motion for a judgment of acquittal, and imposed a manifestly excessive sentence.

Leerdam contends that his conviction should be reversed because at trial the prosecutor failed to fully disclose the State's plea agreement with one of its witnesses, presented unreliable and unduly suggestive in-court identifications, and elicited improper hearsay and perjured testimony. Leerdam also argues that his sentence was excessive.

We affirm the judgment of conviction for each defendant.

I.

A.

The trial evidence presented by the State, including the testimony of co-conspirator Gina Conway, established the following facts. Wingate and Leerdam were twenty-eight and twenty-one years old, respectively, in September 2006. People knew them as brothers, but they may have been step-brothers. Wingate's on-again-off-again girlfriend, Gina Conway, was an exotic dancer at a Bronx club named Sin City. One of the victim's attraction to Conway precipitated the events that culminated in another victim's homicide.

Two of the victims, Allan Plowden and David Taylor, were partners in criminal enterprises that included mortgage, real estate, and credit card fraud. They drove expensive cars around New York City, and Plowden often carried a Louis Vuitton bag containing cash, sometimes as much as $40,000. On September 19, 2006, while in the Bronx, Plowden noticed Conway standing across a street. He introduced himself then took her to a bar where they had a drink. Later, he took her to a hotel in Mahwah, New Jersey, where he unsuccessfully tried to seduce her. Conway left the hotel room at approximately 4:00 a.m. and took a taxi to Sin City where she met Wingate and gave him money, then met a bouncer named Turon Gholston,*fn1 with whom she left.

Two days later, on September 21, the day before the homicide, Plowden phoned Conway, picked her up, and took her shopping in Bergen County. He was carrying the Louis Vuitton bag. During the shopping trip, Conway telephoned Wingate to make him jealous, and told him what she was doing. After shopping, Conway accompanied Plowden to a hotel in Fort Lee. Plowden gave Conway a room key card. During their stay, Plowden opened the designer bag several times to impress Conway, who thought it contained approximately $50,000. Later that night, Plowden drove Conway to Manhattan where he dropped her off.

After dropping Conway off, Plowden met David Taylor and two women, spent the night in a club, and eventually returned to the Fort Lee Holiday Inn where he shared a room with one of the women, Giselle Nieves. Taylor shared a room in the same hotel with the other woman, Maite Castro. Before going to bed, Plowden hid all but $1000 of his cash, as well as his wallet, jewelry, and car keys, under the plastic liner of a trash can. He hid the remaining $1000 under his bed's mattress, and then went to bed while Nieves showered. The crimes were committed in his room later that morning.

Meanwhile, after Plowden dropped off Conway, she took a taxi to a basketball court near 135th Street and Fifth Avenue where she met Wingate and his friends at approximately 11:00 p.m. During the next couple of hours, she took an ecstasy pill and drank some Hennessy Cognac, which made her high, but the degree of her intoxication seemed to rise and fall. She told Wingate about Plowden's money. When he asked how much, she replied "a lot." Wingate then said he was "going to get him," which Conway understood as meaning that Wingate was going to get Plowden's money.

Wingate asked Conway where Plowden was, and she told him Plowden was probably at a club. She also told him where Plowden was staying. Wingate telephoned Leerdam, who arrived a few minutes later and spoke with Wingate. When they finished speaking, Wingate told Conway to go with Leerdam and take him to the hotel where Plowden was staying. According to Conway, Wingate did not intend to use force, but rather intended to steal the money while Plowden was at the club. Shamell Foye, the only witness to testify on behalf of the defense, said he was at the basketball court and saw Wingate and Conway, but not Leerdam.

The group left the basketball court and Leerdam tried to get a car, but he was unable to find one suitable for his purposes. Wingate called the cell phone*fn2 of a taxi driver, Mouhamadou Mbengue, and asked Mbengue to drive his brother and his girlfriend to New Jersey. Mbengue drove Leerdam and Conway to New Jersey, but stopped for gas on the way. While Leerdam went into the store at the gas station, Wingate pulled up in a car and told Conway that if she "pulled it off" he would love her forever.

Mbengue, Leerdam, and Conway arrived at the Fort Lee Holiday Inn at approximately 4:30 a.m., after mistakenly going to two other Holiday Inn hotels. During the journey, three calls were placed from Leerdam's cell phone to the Holiday Inn reservation line. Upon their arrival, Conway spotted Plowden's car and told Leerdam that Plowden had returned. Leerdam told Mbengue to wait and Leerdam and Conway entered the Holiday Inn.

On the way to Plowden's room, Leerdam put on gloves, took duct tape from his pocket, and displayed a handgun. Conway, who had not seen any of these items previously, became nervous because this was not part of the plan. When they arrived at Plowden's room, Leerdam told Conway to use her key card to open the door, but it did not work. Conway called Plowden's cell phone and could hear it ringing, but Plowden did not respond. Conway knocked on the door. Nieves answered, told Conway and Leerdam that Plowden was sleeping, and tried to close the door. Conway used her foot to prevent the door from closing, and she and Leerdam entered the room.

Once inside, Leerdam grabbed Nieves by the hair, pointed the gun at her head, and demanded the money and Plowden's car keys. Conway searched the room. Plowden continued to sleep. Leerdam shoved Nieves into the bathroom and told Conway to tape her up, which Conway did, duct taping Nieves's wrists, mouth, and ankles. Nieves got a good look at Leerdam and noticed a scar on the left side of his face.

Conway woke Plowden; Leerdam told Plowden not to look at him or he would be shot, so Plowden turned away and Conway duct taped his hands and eyes. Plowden told them about the money under the mattress. While Conway and Leerdam searched the room, Plowden, who was on the floor covered by a comforter, was able to lift part of the duct tape from his eyes, peek, and see what was going on. He eventually told Leerdam and Conway that the rest of the money was downstairs in a friend's room. Holding the gun to Plowden's head, Leerdam forced Plowden to call Taylor.

When Taylor arrived at the room, he knocked on the door and Conway opened it. Leerdam stood behind the door with the gun. When Taylor entered, Leerdam pointed the gun at his face, Taylor reached for the gun, it discharged, and Taylor fell dead. According to the Bergen County Medical Examiner who conducted the autopsy, Taylor had stippling*fn3 on his face and two of his fingers, and a gunshot wound in his mouth. Taylor had died from an intraoral gunshot wound to his head and neck.

Conway collected items from the room, including cell phones, a laptop computer, and new clothes that Plowden had purchased the day before. She then went through Taylor's pockets and took $800. Leerdam took Taylor's watch and changed into one of Plowden's shirts and a suit jacket. Leerdam then struck Plowden in the face with the gun; and Conway took Nieves's purse and threatened to kill Nieves and her family. Before leaving, Leerdam and Conway told Plowden they were going to Taylor's room and if the money was not there, they would come back and kill him.

Plowden managed to free himself and chase after Leerdam and Conway. He caught and punched Conway, but when she screamed and Leerdam turned toward him with the gun, he retreated. When Leerdam and Conway returned to Mbengue's car, Mbengue noticed that Leerdam was wearing new clothes. Mbengue drove Leerdam and Conway back to Leerdam's apartment in New York City, where Leerdam phoned Wingate. Conway took a bag containing items stolen from the hotel room and went to Sin City, where she met Gholston and later took a bus with him to his apartment in Bloomfield, New Jersey. She left the bag at his apartment, took another bag, and went to the home of Wingate's sister-in-law. While there, she telephoned Wingate, who said he was sorry for what had happened and would take care of her.

During the ensuing police investigation, Plowden not only failed to identify Leerdam from two photo arrays, but identified the picture of another man the police had used as a "filler." Detectives interviewed Gholston and retrieved the bag that Conway had left at Gholston's house. The bag contained two Holiday Inn key cards, cell phones, a laptop, car keys, clothing, a wallet, and a camera. When detectives arrested Conway, she gave them a statement implicating Wingate and Leerdam.

B.

A Bergen County grand jury charged Wingate, Leerdam, and Conway*fn4 in a twelve-count indictment with first degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); first degree felony murder, N.J.S.A. 2C:11-3a(3) (counts two and seven); first degree robbery, N.J.S.A. 2C:15-1 (counts three, four, and five); second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1b (count six); first degree kidnapping, N.J.S.A. 2C:13-1 (counts eight and nine); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count ten); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b (count eleven). The grand jury also charged Turon Gholston with receiving stolen property, N.J.S.A. 2C:20-7 (count twelve).

The trial court denied defendants' motion for severance, and thereafter a jury acquitted them of count eleven; convicted them of the lesser-included offense of aggravated manslaughter on count one; and convicted them of all other offenses charged in the indictment.

At Wingate's sentencing, after appropriate mergers, the court imposed the following prison terms: on count two (felony murder), forty years with an eighty-five percent period of parole ineligibility and five years of supervision upon release under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; fifteen years subject to NERA on count three (robbery of Plowden) concurrent to count two; fifteen years subject to NERA on count four (robbery of Nieves) concurrent to count two and consecutive to count three; twenty years subject to NERA on count eight (kidnapping Plowden) concurrent to counts two and three; and twenty years subject to NERA on count nine (kidnapping Nieves) concurrent to counts two and four, and consecutive to count eight. The court also imposed appropriate assessments and fined Wingate $50,000.

As to Leerdam, the court imposed the same sentence with two exceptions; it sentenced Leerdam to life imprisonment on count two, and imposed no fines.

II.

We begin with Wingate's arguments. In his original brief, Wingate argues:

POINT I THE TRIAL COURT MISAPPLIED ITS

DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ON COUNTS TWO, THREE, FOUR, EIGHT, AND NINE, BECAUSE THE STATE ONLY PRODUCED SPECULATIVE EVIDENCE THAT THE DEFENDANT HAD THE INTENT TO PARTICIPATE IN A ROBBERY [of] ALLAN PLOWDEN, AND AIDED CO-DEFENDANTS LEERDAM AND CONWAY IN THE SHOOTING AND ROBBERY OF DAVID TAYLOR AND THE KIDNAPPING OF GISELLE NIEVES AND ALLAN PLOWDEN.

POINT II THE DEFENDANT'S CONVICTIONS SHOULD

BE REVERSED BECAUSE THE TRIAL COURT MISAPPLIED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO PEREMPTORY CHALLENGE BY DENYING TRIAL COUNSEL'S MOTION TO EXCUSE JUROR NUMBER 4.

POINT III THE JURY CHARGE WAS PREJUDICIALLY

DEFECTIVE BECAUSE THE TRIAL COURT FAILED TO PROVIDE ADEQUATE GUIDANCE TO THE JURY AS TO HOW TO ASSESS ACCOMPLICE LIABILITY (NOT RAISED BELOW).

POINT IV THE TRIAL COURT MISAPPLIED ITS

DISCRETION IN FAILING TO SEVER THE DEFENDANT'S TRIAL FROM CO-DEFENDANT LEERDAM (RAISED IN PART BELOW).

(A)

EVIDENCE WHICH PERTAINED SOLELY TO CO-DEFENDANT LEERDAM WAS SO DISPARATELY GREATER THAN THE EVIDENCE WHICH PERTAINED TO THE DEFENDANT TO HAVE JUSTIFIED SEVERANCE (RAISED IN PART BELOW).

(B)

THE TRIAL COURT ERRED IN FINDING THAT THE LEVEL OF ANTAGONISM BETWEEN THE DEFENDANT AND CO-DEFENDANT LEERDAM DID NOT WARRANT SEVERANCE.

POINT V THE AGGREGATE 40 YEAR BASE

CUSTODIAL SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF JUDICIAL DISCRETION.

(A)

IMPOSITION OF BASE SENTENCES IN EXCESS OF THE STATUTORILY AUTHORIZED MINIMUM 30 YEAR SENTENCE ON THE DEFENDANT'S CONVICTION FOR FELONY MURDER ON COUNT TWO, AND IN EXCESS OF THE STATUTORILY AUTHORIZED MINIMUM 10 YEAR SENTENCES ON THE DEFENDANT'S CONVICTIONS FOR ROBBERY AND KIDNAPPING ON COUNTS THREE, FOUR, EIGHT, AND NINE, CANNOT BE SUPPORTED BY QUALITATIVE ANALYSIS OF THE AGGRAVATING AND MITIGATING FACTORS PRESENT.

(B)

CONSECUTIVE TERMS ON THE DEFENDANT'S CONVICTIONS FOR ROBBERY AND KIDNAPPING SHOULD NOT HAVE BEEN IMPOSED.

(C)

THE TRIAL COURT FAILED TO TAKE INTO CONSIDERATION THE "REAL TIME" CONSEQUENCES OF THE MANDATORY NERA PERIODS OF PAROLE INELIGIBILITY.

In his pro se supplemental brief, Wingate argues:

POINT ONE

DID THE STATE PROVE BEYOND A DOUBT THAT DEFENDANT KNEW AND POSSESSED A WEAPON FOR UNLAWFUL PURPOSE AGAINST THE PERSON.

POINT TWO

DID THE STATE PROVE BEYOND A REASONABLE DOUBT DEFENDANT KNEW OF A WEAPON INVOLVING A[N] ALLEGED CONSPIRACY-ROBBERY.

Lastly, in his supplemental brief, Wingate argues:

POINT I

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY ON THEFT AS A LESSER INCLUDED OFFENSE OF ROBBERY (NOT RAISED BELOW).

A.

We first address Wingate's contention that the trial court misapplied its discretion by denying the motion to sever his trial from Leerdam's trial. He argues that most of the evidence involved Leerdam's conduct, and compared to that evidence, the evidence against him was so "disparately absent that denying the motion for severance deprived [him] of his right to a fair trial."

Rule 3:7-7 permits "[t]wo or more defendants [to] be charged in the same indictment . . . if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Rule 3:7-7 also provides that "[r]elief from prejudicial joinder shall be afforded as provided by R. 3:15-2." Rule 3:15-2(a) states that a court should grant severance if one defendant has made a statement implicating any other defendant and that portion of the statement cannot be effectively redacted. That rule is inapplicable here. Rule 3:15-2(b) provides that in cases where it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.

The decision to grant or deny a motion for severance rests in the trial court's sound discretion. State v. Morton, 155 N.J. 383, 452 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Our courts have established a "general preference to try co-defendants jointly." State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (1992). Joint trials are preferred when "much of the same evidence is needed to prosecute each defendant." State v. Brown, 118 N.J. 595, 605 (1990). Nevertheless,

[w]hen considering a motion to sever, a court must balance the potential prejudice to a defendant against the interest in judicial economy. The test for granting severance . . . is a rigorous one. Separate trials are necessary when co-defendants' defenses are antagonistic and mutually exclusive or irreconcilable. However, if the jury can return a verdict against one or both defendants by believing neither, or believing portions of both, or, indeed, believing both completely, the defenses are not mutually exclusive.

[State v. Brown, 170 N.J. 138, 160 (2001) (internal quotation marks and citations omitted).]

In its written decision denying the severance motions, the trial court noted that Leerdam intended to present a defense that he was not involved, and that Conway lied to protect Wingate, with whom she was in love. To support that theory, Leerdam intended to emphasize at trial Wingate's statement to Conway that if she stole the money from Plowden, Wingate would "love her forever"; that Plowden identified another person as the shooter; that others conspired to rob Plowden;*fn5 and that proceeds from the theft were recovered from Gholston and Wingate's brother. The court nonetheless concluded that Wingate and Leerdam were not "urging antagonistic defenses at their core," and depending on what evidence it believed, a jury could convict both defendants, convict one of them, or acquit them both. The court reasoned:

In the instant matter, the State intends to present identical evidence against both Leerdam and Wingate. The State claims that there is not one piece of evidence or testimony that would not be introduced against both defendants at separate trials. Leerdam and Wingate are charged with conspiracy and offenses which arise from the same acts and transaction. The prosecutor's theory of the case does not force the jury to choose between the defendants' conflicting accounts and to find only one defendant guilty. Thus, Leerdam's defense is not mutually exclusive and antagonistic at its core. The jury will be able to assess the credibility of all witnesses and evaluate each defendant's version of the events and reach a conclusion on the culpability of each. Moreover, this court will instruct the jury that it must return separate verdicts for each defendant as to each of the charges in the indictment, and that the jury will hence have to decide each case individually. Additionally, the jury will be instructed that whether the verdicts as to each defendant are the same depends on the evidence and its determination as judges of the facts.

In view of the foregoing, this court is of the opinion that the defendants' due process right[s] to a fair trial are not outweighed by the State's interest in judicial efficiency, as such, severance is not appropriate. Because the prosecution of the offenses arises from the same transaction and requires the same evidence, this court must deny defendant's motion for severance.

The trial court analyzed and balanced the factors weighing in favor of and against severing the cases for trial. The court acted well within its discretion when it denied the severance motions.

Wingate relies upon State v. Hall, 55 N.J. Super. 441 (App. Div. 1959) and State v. Bellucci, 165 N.J. Super. 294 (App. Div. 1979), aff'd as modified, 81 N.J. 531 (1980), to support his argument that "severance is appropriate where most of the evidence presented by the State relates to persons other than the defendant." In both cases, we affirmed the trial court's discretionary denial of the severance motions, concluding that any potential prejudice to the defendant was overcome by timely and proper jury instructions. Hall, supra, 55 N.J. Super. at 455; Bellucci, supra, 165 N.J. Super. at 301. Here, too, the trial court specifically instructed the jury to consider the evidence against each defendant separately. Accordingly, we reject Wingate's argument.

B.

Wingate contends in his second point that when the court failed to excuse a juror (Juror No. 4) for cause, the court effectively deprived him of his right to exercise peremptory challenges.*fn6 Following a weekend recess, Juror No. 4 reported that he had contact with the victim's father. When questioned by the court, Juror No. 4 described the incident:

Yeah, a gentleman came in for some jeans and I waited on him for a couple of minutes, gave him a couple of pairs to try on. When he came out we were discussing alterations and that he didn't live in the area, and that he was up from North Carolina. And I kind of said uh-oh, and I recognized him and he recognized me and he immediately left. I tried to turn him over to somebody else but he -- he just left, so -- Upon the court's further inquiry, Juror No. 4 identified the "gentleman" as victim Taylor's father. The juror also indicated he had mentioned "'having contact with someone' to the other jurors," but none of them reacted to his statement.

The court next questioned the victim's father, who described the incident:

I researched the nearest (inaudible) so about 10 to 12 last Friday, I walked over to the store, I walked in the store, the gentleman was about 25 to 30 feet away said could I help you. I said no, I'm just looking. I walked over to the right of the store to look at jeans and it happened he was walking back folding some jeans. I did say do you have any jeans that fit me. He said what size you need, I told him what size, and he walked from one side of the store to the other looking for some jeans, and he told me I could stay where I was and he found three pair of jeans and said try these on. And I tried them on, he said if they don't fit call me and I'll bring some others over. They didn't fit, I called him and he brought me two other pair. They fit, I walked back out with the gentleman and I inquired about the length and did he have something a little longer. Apparently they were long enough but I felt I would like them a little longer and he said no, I really don't have the next size up.

And so then I told him that I had two operations and I said I'm in town longer than I anticipated and (inaudible). And I said I needed them by today. And at that point, you know, I was kind of walking away and he said, turn around and look at me. I turned around and looked at him and in that instance he said I can't wait on you. And I recognized who he was and I headed back to the dressing room and at the same time he said one of my other associates can help you.

I went back to the dressing room, changed my pants, came back out and a lady was trying to help me at the desk. And when I left I felt uncomfortable doing the transaction and then I left.

The court questioned each juror individually. Juror No. 4 told the court that his encounter with Taylor's father would not affect his role as a juror, and would not in any way affect his ability to be fair. Some of the other jurors heard the remark made by Juror No. 4 -- that he had encountered someone in the store -- and some did not. Each juror who heard the remark informed the court that the remark would not affect his or her ability to be fair or to continue with the case.

After questioning each juror, the court denied defendants' motion to excuse Juror No. 4 for cause. Wingate now contends that the court's decision effectively prevented him from exercising a peremptory challenge.

We reject Wingate's contention. His ability to exercise peremptory challenges was not impeded or affected by the situation, which arose not during jury selection, but during the trial.

Wingate relies upon State v. Cooper, 151 N.J. 326 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000), and State v. Thompson, 142 N.J. Super. 274, 282 (App. Div. 1976), to support his argument. Each of those cases involved a juror providing misinformation or withholding information when questioned during jury selection. Cooper, supra, 151 N.J. at 349; Thompson, supra, 142 N.J. Super. at 277. Neither case has any applicability here. The case before us did not involve jurors withholding information when questioned during jury selection.

The Supreme Court has instructed that "if during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." State v. R.D., 169 N.J. 551, 557-58 (2001). The Court has explained that a trial court "is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby." Id. at 558. "Ultimately, the trial court is in the best position to determine whether the jury has been tainted." Id. at 559. We review decisions of the trial court under an abuse of discretion standard. Ibid.

Here, Juror No. 4 was not exposed to extraneous information. Rather, he had an innocuous encounter with the victim's father. The trial court questioned both the juror involved in the encounter, as well as all of the other jurors, and was satisfied that each could continue to fulfill his or her role as a juror and continue to be fair and impartial. We are satisfied that the court handled the situation properly. The determination not to excuse Juror No. 4 was an appropriate exercise of the court's discretion.

C.

Wingate next contends the trial court failed to provide adequate guidance to the jurors as to how to assess accomplice liability. He also argues that the court erred by failing to charge theft as a lesser included offense of robbery.

In his challenge to the court's accomplice charge, Wingate does not assert that the charge given by the court was error; rather, he suggests that "the absence of any factual context to the legal issues in the trial court's jury instructions" constitutes plain error. Wingate did not object to the court's charge on accomplice liability. When neither the State nor the defendant objects to the trial court's instruction to the jury, we must determine whether the trial court's charge as a whole "misinformed [the jury] as to the controlling law," State v. R.B., 183 N.J. 308, 324 (2005) (quoting State v. Hipplewith, 33 N.J. 300, 317 (1960)), or was "clearly capable of producing an unjust result," R. 2:10-2; State v. Macon, 57 N.J. 325, 335 (1971) ("[T]he question whether an error is reason for reversal depends finally upon some degree of possibility that it led to an unjust verdict."), or "whether there is reasonable doubt that the jury would have ruled other than as it did." State v. Branch, 182 N.J. 338, 353 (2005) (quoting State v. Irving, 114 N.J. 427, 447 (1989)). [State v. Thomas, 187 N.J. 119, 134 (2006).]

The trial court explained the State's allegation that Wingate was responsible for the crimes committed by Leerdam and Conway "because each defendant acted as the other's accomplice with the purpose that the specific crimes charged be committed." The court gave comprehensive instructions on the elements of accomplice liability. Wingate did not submit a proposed charge to the court that integrated the facts with the legal elements of accomplice liability, nor did he object at the time the court instructed the jury. Significantly, Wingate does not explain how the court could have "integrated" the facts without unduly emphasizing Wingate's role as the person who conceived the conspiratorial plan and enlisted the help of Conway and Leerdam to execute it. More significantly, Wingate cites no authority for the proposition that a trial court must, without a request, integrate all of the facts adduced during a trial into its jury instructions.

"Trial courts have broad discretion when commenting on the evidence during jury instruction." State v. Brims, 168 N.J. 297, 307 (2001). Generally, "summarizing the strengths and weaknesses of the evidence is more appropriately left for counsel." State v. Robinson, 165 N.J. 32, 45 (2000). In the case before us, that is precisely what occurred. Counsel for Wingate zealously advocated Wingate's position in his closing argument.

Our review of the court's charge in its entirety discloses no basis for concluding either that the charge as a whole misinformed the jury as to controlling law, or was clearly capable of producing an unjust result. R. 2:10-2. Wingate's general assertion that the court should have integrated facts into its charge on accomplice liability does not establish that the trial court misapplied its discretion.

Wingate also asserts that the court committed error in its charge by failing to instruct the jury on theft as a lesser included offense of robbery. Wingate did not request the charge at trial, nor did he object to its omission from the court's jury instructions.

Theft is a lesser-included offense of robbery. State v. Ingram, 196 N.J. 23, 39 (2008). Nevertheless, "a trial court's obligation to instruct the jury on the court's own motion arises 'only when the evidence clearly indicates the appropriateness of such a charge[.]'" State v. Rivera, 205 N.J. 472, 489 (2011) (quoting State v. Walker, 203 N.J. 73, 87 (2010)).

A person commits robbery if, during the course of committing a theft, he inflicts bodily injury or uses force upon another, or puts another in fear of immediate bodily injury. N.J.S.A. 2C:15-1a(1) and (2). Here, the indictment charged Wingate and Leerdam with robbing Plowden, Nieves, and Taylor. Nieves and Plowden were both robbed after Leerdam pointed a gun at them and Conway bound them with duct tape. Taylor's money and personal items were stolen after Leerdam shot him. No rational juror could have concluded that the acts charged in the indictment constituted theft, rather than robbery. See State v. Cassady, 198 N.J. 165, 178-79 (2009).

D.

In the first point of his initial brief, and in his pro se brief, Wingate contends that the trial judge erroneously denied his motion for a judgment of acquittal at the conclusion of the State's case because the State's evidence did not prove that he "had the intent to participate in a robbery [of] Allan Plowden, and aided . . . Leerdam and Conway in the shooting and robbery of David Taylor and the kidnapping of Giselle Nieves and Allan Plowden." In his pro se brief, Wingate argues that the State failed to prove he possessed a weapon for an unlawful purpose, and failed to prove that he conspired to commit robbery. He argues now, as he did before the trial court on his motion for a judgment of acquittal, that the State's case demonstrated his intent to commit burglary and theft, but nothing else.

Wingate presumably made his motion under Rule 3:18-1, which states that a trial court "shall . . . order the entry of a judgment of acquittal . . . if the evidence is insufficient to warrant a conviction."

More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 458-59 (1967).]

Our review of a trial court's denial of a motion for acquittal under Rule 3:18-1 is de novo, and we apply the same standard. State v. Bunch, 180 N.J. 534, 548-49 (2004). We agree with the trial court's decision.

The State prosecuted Wingate on theories of accomplice liability and conspiracy. N.J.S.A. 2C:2-6a, the statute concerning liability for the conduct of another, provides that "[a] person is guilty of an offense if it is committed . . . by the conduct of another person for which he is legally accountable[.]" A person is legally accountable for the conduct of another person when he or she "is an accomplice of such other person in the commission of an offense," or is "engaged in a conspiracy with such other person." N.J.S.A. 2C:2-6b(3) and (4). An accomplice is a person who acts "[w]ith the purpose of promoting or facilitating the commission of the offense," and, among other things, "[s]olicits [another] person to commit it," or "[a]ids or agrees or attempts to aid [another] person in planning or committing it." N.J.S.A. 2C:2-6c(1)(a) and (b).

A person engages in a conspiracy with another person to commit a crime if, "with the purpose of promoting or facilitating its commission," he or she, among other things, "[a]grees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime . . . ." N.J.S.A. 2C:5-2a. "[T]he agreement to commit a specific crime is at the heart of a conspiracy charge. . . . Actual commission of the crime is not a prerequisite to conspirator liability." State v. Samuels, 189 N.J. 236, 245-46 (2007). And "[b]ecause the conduct and words of co-conspirators is generally shrouded in silence, furtiveness and secrecy, the conspiracy may be proven circumstantially." Id. at 246 (internal quotation marks and citations omitted).

Wingate contends "there is no direct evidence of [his] guilt, and the circumstantial evidence cannot satisfy the 'proof beyond a reasonable doubt' standard of proof." He points out that he was not in the hotel room when the crimes occurred, and "was not even in the state of New Jersey." He emphasizes that the crimes occurred more than three hours after Conway and Leerdam last were in his presence, and he did not possess a gun, gloves, or duct tape. Wingate's argument overlooks a basic principle of conspirator liability, namely, that the agreement is the heart of a conspiracy charge, and "[a]ctual commission of the crime is not a prerequisite to conspirator liability." Id. at 245-46.

Emphasizing that Conway told him that Plowden was not in the hotel room, Wingate also argues that the State failed to establish proof beyond a reasonable doubt that he "had a purpose or specific intent to commit a robbery or kidnapping or to aid another in the commission of same." He further argues that because the predicate offense for the felony murder charge was robbery, he could not have been convicted of felony murder because he and Leerdam planned only to commit theft. We reject Wingate's argument that the State's evidence could not have established that he intended to rob Plowden.

As we indicated previously, "[a] person is guilty of robbery if, in the course of committing a theft, he[] . . .

[i]nflicts bodily injury or uses force upon another[,] or . . .

[t]hreatens another with or purposely puts him in fear of immediate bodily injury[.]" N.J.S.A. 2C:15-1a(1) and (2). When Conway arrived at the basketball court and told Wingate about Plowden's money, Wingate asked where Plowden was. According to Conway, "[Wingate] asked me where is [Plowden] now and I told him I think he went to a club or something." (Emphasis added). Wingate then asked where Plowden was staying, and Conway "told him that [Plowden] was staying at a hotel." That exchange occurred after Conway told Wingate, "I was with this guy and, you know, he took me shopping and, you know, he had a nice car and he was walking around with a bag of money . . . ." (Emphasis added).

Conway had seen Plowden carrying the money; she never told Wingate that Plowden left the money in a hotel room. When Wingate decided to steal the money, he did not know where Plowden was, but he knew that Plowden was staying in the Fort Lee Holiday Inn. Contrary to Wingate's argument, the jury was not compelled to infer from those facts that Wingate believed Plowden's money was hidden in an unoccupied hotel room. The jury could have inferred from those facts, and from Wingate's statement that he was "going to get him," that Plowden kept the money bag with him, and that Wingate intended to take the money when Plowden returned to the hotel.

Significantly, Conway did not hear all of the conversations between Wingate and Leerdam. For example, when Conway and Wingate were at the basketball court and Conway first told him about Plowden's cash, Wingate made telephone calls and Leerdam appeared shortly thereafter. Wingate and Leerdam then spoke face-to-face immediately before Wingate told Conway to take Leerdam to the hotel where Plowden was staying. Conway did not hear all of that conversation. Later when Conway and Leerdam entered the Holiday Inn, Leerdam had a gun, gloves, and duct tape, evidence that he had previously formed the intent to rob Plowden. The jury could have reasonably inferred from the totality of those circumstances that Wingate and Leerdam conspired to rob Plowden when Plowden returned to the hotel.

Unquestionably, the State's proofs concerning Wingate's accomplice liability and conspiratorial culpability were circumstantial. Nonetheless, the interconnected inferences were reasonable on the evidence as a whole. Samuels, supra, 189 N.J. at 246. In denying Wingate's motion, the trial court properly concluded that the State had presented sufficient circumstantial evidence of Wingate's accomplice liability to submit the issue to a jury.

"[A] co-conspirator may be liable for the commission of substantive criminal acts that are not within the scope of the conspiracy if they are reasonably foreseeable as the necessary or natural consequences of the conspiracy." State v. Bridges, 133 N.J. 447, 466-67 (1993). Stated differently, under N.J.S.A. 2C:2-6b(4), "a conspirator is responsible for all criminal acts committed in furtherance of the conspiracy." State v. Roldan, 314 N.J. Super. 173, 188 (App. Div. 1998). Conspiratorial liability encompasses possessory offenses. Ibid. Leerdam's offenses, as well as Conway's offenses, were all committed in furtherance of the conspiracy to rob Plowden. Robbery was one of the predicate offenses charged in the felony murder count of the indictment. Having conspired with Leerdam to rob Plowden, Wingate was responsible for the criminal acts committed by Leerdam in furtherance of the conspiracy, including the weapons offense.

E.

Lastly, Wingate argues that the trial court's imposition of sentences above the statutory mandatory minimum sentences "cannot be supported by a qualitative analysis of the aggravating and mitigating factors." Wingate also argues that the court erred by imposing sentences for Wingate's kidnapping convictions that were consecutive to his robbery convictions; and failed to take into consideration the "real time" consequences of mandatory parole ineligibility periods.

A court has wide discretion when imposing a sentence, but the sentence must not be manifestly excessive nor unduly punitive. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984). In determining the appropriate sentence to be imposed, the sentencing court must consider statutorily enumerated aggravating and mitigating circumstances, N.J.S.A. 2C:44-1a and b, balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record on appeal. State v. Kruse, 105 N.J. 354, 360 (1987). When trial courts "exercise discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court]," we may not second-guess the trial court. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotation marks and citation omitted).

When reviewing the sentence imposed by a trial court, we must determine first, whether the correct sentencing guidelines . . . [or] presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of the guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. [State v. Tindell, 417 N.J. Super. 530, 567 (App. Div. 2011) (quoting Roth, supra, 95 N.J. at 365-66).]

At sentencing, the trial court found no mitigating factors and three aggravating factors: the risk the defendant will commit another offense, N.J.S.A. 2C:44-1a(3); the extent of the defendant's prior record, N.J.S.A. 2C:44-1a(6); and the need for deterrence, N.J.S.A. 2C:44-1a(9). In deciding to impose more than the mandatory minimum sentence, the court stated:

In choosing to impose a lesser sentence on Mr. Wingate than I did as to Mr. Leerdam, I do so in recognition of the fact that Mr. Wingate was not personally present at the scene of these crimes, nor was he the one who actually shot the decedent, Mr. Taylor. However, in choosing to impose more than the minimum authorized sentence, I do so in recognition of the facts that the aggravating factors clearly outweigh the mitigating, especially when due weight is given to Mr. Wingate's prior record, including his prior conviction in New York for first degree robbery. And also in recognition [of] the role he played in contacting Mr. Leerdam and enlisting his assistance in this plot, but for which arguably none of this may have ever occurred.

Wingate contends that the three aggravating factors cannot support the sentences. He argues that he had only two prior indictable convictions, and that "there exists in this case only a general type of deterrence that is present in every sentencing." He also argues that the court failed to explain why it found a risk that he would commit further crimes.

Wingate also argues that the court erroneously failed to find any mitigating factors. Specifically, he argues that his conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8), because he would have nothing more to do with Conway. He also argues that he cooperated with law enforcement authorities, N.J.S.A. 2C:44-1b(12), by helping them locate Conway.

Wingate had been convicted previously of first degree armed robbery, and he had been released from custody only one year before committing the current offenses. Those circumstances supported the court's finding of a risk of recurrence. On the other hand, Wingate's assertion that he would have nothing further to do with Conway was of little moment. There was no evidence that Conway initiated the conspiracy or enlisted Leerdam to commit the robbery. And there was certainly no evidence that Conway had anything to do with the previous armed robbery that Wingate committed.

Wingate's argument that he cooperated with law enforcement authorities is also devoid of merit. It was Conway, not Wingate, who admitted her complicity in the crimes and testified against Leerdam and Wingate. The statement Wingate provided to law enforcement authorities about Conway's whereabouts can hardly be deemed cooperation.

Wingate also argues that the court erred by imposing consecutive fifteen-year sentences for his robbery convictions, counts three and four; and consecutive twenty-year sentences for his kidnapping convictions, counts eight and nine. The consecutive sentences on those counts did not increase Wingate's aggregate prison term.

The robbery and kidnapping charges resulted from separate acts of violence perpetrated against separate victims, Plowden and Nieves. Generally, consecutive sentences are appropriate when multiple victims are involved. See State v. Carey, 168 N.J. 413, 428 (2001); State v. Yarbough, 100 N.J. 627, 644 (1985) ("some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not . . . any of the crimes involved multiple victims"), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The court did not misapply its sentencing discretion by imposing consecutive sentences.

Lastly, Wingate asserts that the court failed to take into consideration the real-time consequences of the NERA periods of parole ineligibility. However, "the impact of the eighty-five percent period of parole ineligibility on the time defendant would spend in custody [is] not [a] statutory mitigating factor[] and thus [does] not need to be addressed by [the]

[j]udge in sentencing." Bieniek, supra, 200 N.J. at 610 n.1. Thus, the judge's failure to consider the real-time consequences of imposing this sentence does not provide an independent basis for reversing Wingate's sentence.

III.

Leerdam raises the following arguments in his original brief:

Point 1 Defendant's constitutional due process rights were violated by impermissibly suggestive and insufficiently reliable in-court identifications that the trial court permitted before the jury without a line-up or other procedure to gauge their reliability.

Point 2 The jury was misled by the prosecutor's failure to fully disclose the plea agreement reached with a State witness.

Point 3 The admission of hearsay statements made by the alleged co-defendant violated defendant's constitutional right to confront the witnesses against him at trial, and the antagonistic defenses that developed during trial warranted a mistrial.

Point 4 Defendant's sentence is improper and excessive.

In his first supplemental pro se brief, Leerdam argues:

POINT ONE

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT MISAPPLIED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO PEREMPTORY CHALLENGE BY DENYING TRIAL COUNSEL'S MOTION TO EXCUSE JUROR NUMBER (4), IN VIOLATION OF DEFENDANT'S SIXTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL JURY.

In his final supplemental pro se brief, Leedam argues:

POINT ONE

DEFENDANT WAS DEPRIVED A FAIR TRIAL AND DUE PROCESS OF LAW UNDER THE FOURTEENTH AND SIXTH AMENDMENTS BECAUSE THE PROSECUTOR KNOWINGLY USED PERJURED TESTIMONY AND ALLOWED THE FALSE TESTIMONY BY A STATE WITNESS TO GO UNCORRECTED TO THE COURT AND JURY.

A.

Leerdam first argues that he was denied a fair trial when the court permitted one of the victims, Plowden, and the cab driver, Mbengue, to identify him during the trial. Within the week following the homicide, Plowden was twice shown photographic arrays but was unable to identify Leerdam. Plowden identified someone other than Leerdam in one of the arrays, though he told a detective that he would prefer to see the suspects in person, because he did not think the pictures were clear enough for him to be certain of the identification. Mbengue was not shown a photo array.

During Plowden's trial testimony, Leerdam's counsel objected to Plowden identifying Leerdam in court. In response, the court conducted a Wade*fn7 hearing. Plowden testified at the hearing that he had ample opportunity to observe Leerdam on the night of the homicide. Plowden saw Leerdam's face when he initially woke up, at which time Leerdam was holding the gun. Leerdam was approximately three feet away, and the room was lit. Although Plowden turned away when Leerdam told him not to look, he was later able to partially remove the duct tape from his eyes and watch Leerdam "from the time David Taylor came inside the hotel room to the time that he fell to the floor." Plowden was also able to observe Leerdam's face for "seconds" when Plowden chased Conway after she left the hotel room. Plowden testified that he was one hundred percent certain of his ability to identify the perpetrator. Based on Plowden's testimony, the court permitted Plowden to identify Leerdam in front of the jury.

Before Mbengue testified, Leerdam objected to Mbengue identifying him in court. Arguing that Mbengue had made no pretrial identification, Leerdam requested a Biggers*fn8 hearing, or that he, Leerdam, be placed in an appropriate line-up. Leerdam asserted that in the absence of a pretrial identification, Mbengue identifying him in court would be unduly suggestive.

The court denied Leerdam's application, noting that Leerdam had not filed a pretrial application concerning Mbengue identifying him. The court knew of no precedent that would preclude an in-court identification by a witness who had a reasonable amount of contact with a suspect. The court concluded that Leerdam had not made a sufficient showing to require an evidentiary hearing before Mbengue testified.

Leerdam essentially argues that Plowden did not make sufficient observations of the perpetrator to identify Leerdam as that person, as evidenced both by Plowden's inability to identify Leerdam from two photographic arrays, and from Plowden's identification of another individual. Consequently, the inherently suggestive procedure of Plowden identifying Leerdam while Leerdam sat next to his attorney during the criminal trial resulted in the substantial likelihood, if not the reality, of irreparable misidentification. Leerdam also argues that because Mbengue did not make any pretrial identification, Mbengue's ability to identify Leerdam should have been the subject of a hearing or tested by a line-up.

We begin with the fundamental proposition that "'[r]eliability is the linchpin in determining the admissibility of identification testimony[.]'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). When deciding whether to permit an in-court identification following a suggestive out-of-court identification, the court must evaluate, among other things, the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. [Biggers, supra, 409 U.S. at 199-200, 93 S. Ct. at 382, 34 L. Ed. 2d at 411.]

See also Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154; Madison, supra, 109 N.J. at 239-40.*fn9

Here, the trial court conducted a hearing before permitting Plowden to identify Leerdam in front of the jury. "[T]he trial court's findings at the hearing on the admissibility of identification evidence are 'entitled to very considerable weight.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972)). The trial court appropriately evaluated the circumstances under which Plowden viewed the photographic arrays, including his statements that he could not be sure of his identification without seeing the individuals in person. The court considered the amount of time that Plowden had to observe the perpetrator in the hotel room, the level of attention Plowden paid to the perpetrator as the perpetrator shot Taylor, Plowden's inability to identify Leerdam from two photographic arrays, and Plowden's in-court expression of certainty about the identification. The court had the ability to observe Plowden and gauge his credibility. See State v. Locurto, 157 N.J. 463, 470-71 (1999). We find no reason to disturb the trial court's decision to admit Plowden's in-court identification.

We also conclude that Mbengue's in-court identification of Leerdam was properly admitted. Our Supreme Court has addressed the issue of in-court identification in a similar context:

Notwithstanding that [the witness] identified defendant for the first time in court, her identification was constitutionally valid. Although undercut by the long delay between the crime and the trial, the reliability of the identification is supported by other considerations. . . . [The witness] had ample opportunity to view the assailants under circumstances in which she was seeking to establish their identities. The courtroom atmosphere was suggestive, but not so much so as to outweigh the reliability of the identification. Defense counsel had ample chance to challenge the accuracy of the identification on cross-examination, and the jury was free to discount its value based on [the witness's] inability to identify anyone on earlier occasions. [State v. Clausell, 121 N.J. 298, 327-28 (1990) (internal citation omitted).]

Mbengue had ample opportunity to observe Leerdam. He drove Leerdam from New York City to several Holiday Inns, then from Fort Lee back to New York City. In fact, when Leerdam returned to the car after exiting the Fort Lee Holiday Inn, Mbengue noticed that he had changed clothes.

Leerdam insists that the trial court should have granted his request for a line-up before permitting Mbengue to identify him in court. We disagree. "Although [a] defendant has no constitutional right to pretrial lineup discovery, . . . a Court has the inherent power to order discovery when justice so requires." State in Interest of W.C., 85 N.J. 218, 221 (1981). A defendant may, under certain circumstances, be entitled to a pretrial line-up. Id. at 225. However, before granting a defendant's motion for a pretrial line-up the court has to consider countervailing factors, including whether "identification [is] a substantial material issue." Id. at 226.

The trial court in the case before us properly determined that Leerdam had not made a sufficient showing "that an evidentiary hearing is required prior to [Mbengue] testifying." Mbengue had ample opportunity to observe Leerdam on the night of the homicide, and Leerdam made no showing to the contrary. Leerdam did not file a pretrial motion to compel a line-up, but instead waited until mid-trial before making the request.

More significantly, both Nieves and Conway identified Leerdam. Nieves's identification of Leerdam from photographs shown to her four days after the homicide was admitted into evidence at trial, and she identified Leerdam during the trial as the man in the hotel room with the gun. Conway, who had known Leerdam as Wingate's brother or step-brother, also identified Leerdam. In other words, there was no significant question, considering "the nature and circumstances of the alleged crime," whether identification of Leerdam was truly an issue. Id. at 226. The trial court acted well within its sound discretion when it denied Leerdam's request for a line-up. Cf. Henderson, supra, 208 N.J. at 288 (explaining that "to obtain a pretrial hearing, defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification").

B.

In Point II of his original brief, Leerdam argues that the jury was misled by the State's failure to fully disclose its plea agreement with Nieves. In a supplemental brief, Leerdam argues that the State permitted Nieves to give false testimony about the scope of her plea agreement.

Nieves and a friend, Maite Castro, had accompanied Plowden and Taylor to the Holiday Inn. Castro had been introduced to Taylor by two of her friends. She and the two friends had previously contemplated robbing Plowden and Taylor. Castro told Nieves about the plan to rob Plowden and Taylor, and Nieves was subsequently charged with conspiracy to commit robbery.

When the prosecutor questioned Nieves at trial, he elicited the circumstances resulting in Nieves being charged with conspiracy to commit robbery, and asked her: "What happened to those charges when you went to court?" She responded that she entered a pre-trial intervention (PTI) program, which she described as a "no-plea program. After you complete it, the case is dismissed." She also testified that she got "kicked out" of the program, but the charges were nonetheless dismissed. The prosecutor did not elicit, and Nieves did not testify, that as a condition of her enrollment in the PTI program, she agreed to cooperate fully with the State and to testify, if necessary, against Wingate and Leerdam. During cross-examination, Nieves denied that she had to agree to cooperate with the prosecution as a condition of her entry into the PTI program. During her redirect examination, Nieves said she was not placed in the PTI program on the condition that she say "what the Prosecutor's Office wanted [her] to say."

Later in the trial, Leerdam's counsel obtained the transcript of Nieves's admission into the PTI program. The prosecutor at the PTI proceeding stated: "And as a condition of her enrollment, the defendant agrees to cooperate fully with the . . . Prosecutor's Office, and to testify, if necessary, in two cases involving [Wingate and Leerdam]."*fn10

The assistant prosecutor trying Leerdam responded that "all conditions of [PTI] disappeared when [Nieves] got kicked out and her case got relisted for trial." The prosecutor further explained that when he questioned Nieves, he was attempting to elicit truthful testimony that she was not testifying against Leerdam and Wingate "as part of a deal." In other words, her agreement to cooperate terminated with her removal from the PTI program, and Nieves was not asked to cooperate as part of any other "deal." Nonetheless, the prosecutor offered to have Nieves recalled so that she could be cross-examined on that point by Leerdam's attorney. Instead of recalling Nieves, the parties agreed that Leerdam's attorney would read a stipulation to the jury. As agreed, Leerdam's attorney read the following stipulation:

[COUNSEL]: Ladies and gentlemen of the jury, it [is] stipulated by and between the parties, Mr. Delaney on behalf of the Bergen County Prosecutor's Office, and people of the State of New Jersey, and the defendant Kelvin Leerdam through his counsel, myself Jennifer Bonjean[, t]hat on May 30[,] 2007 the State moved the entry of Giselle Niev[e]s into the P.T.I. program and that during those proceedings Catherine Fantuzi (phonetic), a prosecutor in the Bergen County Prosecutor's Office, stated on the record:

"It's my understanding that the defendant will be enrolled for a period of three years. And as a condition of her enrollment the defendant agrees to cooperate fully with the Bergen County Prosecutor's Office and to testify if necessary in two cases involving docket 2528-06 and 2629-06."

Despite the stipulation, Leerdam maintains that he was denied a fair trial.

Indisputably, the State must disclose all evidence favorable to a defendant. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963). The State's disclosure obligation "is not limited to evidence that affirmatively tends to establish a defendant's innocence but would include any information material and favorable to a defendant's cause even where the evidence concerns only the credibility of a State's witness." State v. Carter, 69 N.J. 420, 433 (1976).

Assuming the State was required to disclose Nieves's agreement, even though she was not bound by it at trial, we conclude that Leerdam is not entitled to a new trial. Leerdam was aware of Nieves's agreement before the trial ended. The State offered to recall Nieves so that Leerdam could cross-examine her about her agreement. He elected not to cross-examine her, but instead to read to the jury the precise colloquy that occurred when Nieves was admitted into a PTI program. Leerdam has cited no authority for the proposition that a defendant who is unaware of Brady material at the inception of a trial, but is afforded a full opportunity to utilize the material during trial, is deprived of due process. We find no due process violation under those circumstances. See United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983); People v. Leavy, 736 N.Y.S.2d 681, 682-83 (N.Y. App. Div.) (holding that a "defendant's constitutional right to a fair trial is not violated when . . . he is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses or as evidence during his case"), appeal denied, 747 N.Y.S.2d 417 (N.Y. 2002).

C.

Leerdam next contends that his constitutional right to confront and cross-examine witnesses against him was violated when hearsay statements attributable to Wingate were admitted into evidence; and that the court should have declared a mistrial due to the antagonistic defenses that developed during the trial. Leerdam argues that in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), the United States Supreme Court abrogated its former "reliability" approach to the admissibility of hearsay evidence and held that out-of-court statements that are "testimonial" violate the Sixth Amendment. However, the Supreme Court did not apply its holding in Crawford to the co-conspirator exception to the hearsay rule. Our Supreme Court recently held that even if testimonial, "statements of a co-conspirator in furtherance of the conspiracy are an exception to hearsay, and their admission does not violate the Confrontation Clause." State v. Cagno, __ N.J. __, __ (2012) (slip op. at 42).

Leerdam also claims that certain statements attributed to Wingate by Conway were not made in furtherance of the conspiracy. Leerdam cites as examples testimony by Conway that: Wingate told her to meet him at Sin City; Wingate yelled an expletive at her after she disclosed that she went shopping with Plowden; Wingate asked questions about the amount of money Plowden carried; and, upon learning that Plowden carried a large sum of money, Wingate asked where Plowden "is . . . now." Leerdam also takes exception to Wingate's post-shooting statement to Conway that he was sorry about what happened and would take care of her; and statements in letters Wingate wrote while in jail, telling Conway not to talk to anyone about the "situation" and blaming Conway for what occurred.

The admission of those statements, considered separately or collectively, does not warrant a new trial. See R. 2:10-2 (providing that "[a]ny error or omission shall be disregarded by the Appellate Court unless it is of such a nature as to have been clearly capable of producing an unjust result"). The State established Leerdam's guilt through an abundance of evidence, including the testimony of co-conspirator Conway; the testimony of Nieves, including both her out-of-court and in-court identifications of Leerdam; Plowden's testimony; and Mbengue's testimony. Wingate's statements, which did not implicate Leerdam, could hardly have affected the verdict.

Leerdam's remaining arguments concerning the admissibility of statements Conway attributed to Wingate lack sufficient merit to warrant further discussion, R. 2:11-3(e)(2), as does his argument that the antagonistic defenses that developed during trial warranted a mistrial. We add only the following. When Leerdam moved for a mistrial based on antagonistic defenses, the court denied the motion and referred to its previous finding that the respective defenses were not antagonistic. The court's decision incorporated its rationale for denying defendants' severance motions. We agree entirely with the court's decision for the reasons we have previously explained in this opinion.

D.

Leerdam also challenges his sentence as excessive. He argues that the court erred by imposing consecutive terms of imprisonment. He also contends that the court's findings of aggravating and mitigating factors were erroneous.

We previously explained that the trial court did not misapply its discretion by sentencing Wingate to consecutive prison terms. Our rationale applies equally to Leerdam's consecutive sentences. We need not reiterate those reasons.

Leerdam also argues that the court provided insufficient reasons for finding as aggravating factors the risk that he would commit another offense, N.J.S.A. 2C:44-1a(3); the extent of his prior criminal record, N.J.S.A. 2C:44-1a(6); and the need for deterring him and others from violating the law, N.J.S.A. 2C:44-1a(9). The court stated:

First, with respect to Mr. Leerdam, as to aggravating factors, I find number three, the risk that he will commit another offense. I based that finding upon my review of his prior record, which indicates four adult arrests, although I believe the record has been clarified today so that two appear to be juvenile offenses and two are adult arrests. In conjunction with that, I find aggravating factor six, the extent of defendant's prior record, which appears to include one adult conviction, that being in New York for the sale of CDS, which Mr. Leerdam received a sentence between one and three years back in 2004. I also find aggravating factor number nine, the need to deter this defendant and others in engaging in this type of activity.

Leerdam's criminal record, considered as a whole, supported the court's determination.

IV.

In conclusion, we affirm the convictions and sentences of Wingate and Leerdam.

Affirmed.


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