On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-06-2308.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2012
Before Judges Simonelli, Koblitz and Lisa.
Tried to a jury, defendant was convicted of the following offenses: (1) second-degree robbery, N.J.S.A. 2C:15-1a(1); (2) simple assault, a disorderly persons offense, N.J.S.A. 2C:12-1a(1)*fn1 , as a lesser included offense of the indicted charge of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); (3) third-degree receiving stolen property, N.J.S.A. 2C:20-7; (4) third-degree conspiracy to commit the crimes of tampering with public records, forgery, and motor vehicle title offenses, N.J.S.A. 2C:5-2; (5) third-degree tampering with public records, N.J.S.A. 2C:28-7a(1) and N.J.S.A. 2C:2-6; (6) third-degree forgery, N.J.S.A. 2C:21-1a(3) and N.J.S.A. 2C:2-6; and (7) third-degree motor vehicle title offenses, N.J.S.A. 2C:21-4.8b(1) and (3), and N.J.S.A. 2C:2-6. The offenses occurred on three separate dates.
The conspiracy, tampering with public records, forgery, and motor vehicle title offenses (Counts Four, Five, Six and Seven) occurred on October 8, 2008. The robbery and assault (Counts One and Two) occurred on October 10, 2008. The receiving stolen property offense (Count Three) occurred on October 16, 2008.
After merging Count Two with Count One, the judge sentenced defendant on Count One to seven years imprisonment with an eighty-five percent parole disqualifier and three-year period of parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On Count Three, the judge imposed a four-year prison term, to run concurrent with Count One. The judge sentenced defendant on Count Four to a four-year prison term, to be served consecutive to Count One. On Counts Five, Six and Seven, the judge sentenced defendant to four-year terms, each to run concurrent with Count Four. Therefore, defendant's aggregate sentence is eleven years, of which eighty-five percent of the seven-year term imposed on Count One must be served without eligibility for parole, with a three-year period of parole supervision upon release.
On appeal, defendant argues:
THE TRIAL JUDGE ERRED IN DENYING GRAHAM'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE ROBBERY CHRAGE BECAUSE THE STATE FAILED TO PROVE ALL THE ELEMENTS OF ROBBERY.
A. Based on the Evidence Adduced by the State at Trial, the Theft of the [Expedition] Occurred Two Days Prior to the Assault on Broach and Therefore the State Failed to Prove that the Assault Occurred in the Course of a Theft.
1. Theft of the [Expedition] Occurred Pursuant to N.J.S.A. 2C:20-3, When Graham Unlawfully Possessed the Vehicle With the Intent to Deprive Broach Thereof on October 8, 2008.
2. Theft of the [Expedition] Occurred Pursuant to N.J.S.A. 2C:20-4, When Graham Purposely Obtained the Vehicle by Deception on October 8, 2008.
B. The Evidence Adduced by the State at Trial Proves that Graham Lacked the Requisite Mens Rea to Commit Robbery During the Assault of Broach.
BY ONLY MOLDING THE JURY CHARGE TO THE STATE'S VERSION OF EVENTS, THE TRIAL COURT FAILED TO EXPLAIN TO THE JURY HOW IT COULD FIND GRAHAM NOT GUILTY OF THE GREATER OFFENSE AND GUILTY OF THE LESSER OFFENSE, THEREBY VIOLATING HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below.)
THE PROSECUTOR'S STATEMENT INVITING THE JURY TO INFER GUILT BASED ON GRAHAM'S POST-ARREST SILENCE REGARDING HIS ALLEGED ASSAULT AGAINST BROACH VIOLATED HIS RIGHT TO A FAIR TRIAL. (Not Raised Below.)
THE TRIAL JUDGE ERRED IN FAILING TO MERGE GRAHAM'S CONVICTION FOR RECEIVING STOLEN PROPERTY WITH ...