NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2012
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-10-2032.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Erin M. Bisirri, Special Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Sapp-Peterson and Haas.
After a jury convicted defendant of two counts of first-degree robbery, one count of second-degree conspiracy, one count of fourth-degree aggravated assault, and weapons offenses, Judge James E. Isman imposed an aggregate custodial term of twenty years with an 85% mandatory parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, we reversed the convictions and remanded for a new trial after concluding the court committed reversible error when it admitted other crime evidence. State v. Daniels, No. A–5414-05 (App. Div. May 21, 2008) (slip op. at 11, 12). Upon retrial, the jury convicted defendant of one count of armed robbery, N.J.S.A. 2C:15-1, and found him not guilty of the remaining charges. At sentencing, Judge Isman denied the State's motion to impose an extended term. He then imposed a twenty-year custodial term together with a mandatory 85% NERA parole disqualifier. The present appeal followed.
On appeal, defendant contends the judge's failure to instruct the jury that the State was required to prove identification beyond a reasonable doubt deprived him of due process and a fair trial under both the New Jersey and federal constitutions. Defendant additionally contends the sentence imposed was manifestly excessive. We reject both contentions and affirm.
The robbery took place at the Trump Taj Mahal Casino where defendant's girlfriend, co-defendant Margaret Robertson, was employed as a cashier. Following the robbery, she was identified as the person who had taken a magnetic card that allowed access to the cashier's office. She was arrested and agreed to cooperate with police. She implicated defendant as the perpetrator of the robbery. The cashier on duty at the time of the robbery, Tracey Smith, testified that she was unable to identify the perpetrator by facial description. Beyond testifying the individual was black, wearing a Kangol hat and white shirt, Smith could provide no other identifying information to police.
Robertson testified that she had been involved with defendant for about one year prior to the robbery and that defendant started asking her questions about how to gain access into and out of the cashier's office. She explained the operation to him, including that a summer weekend could generate as much as $100, 000 in receipts. She agreed to get an access card for him, which she gave to defendant three days before the robbery, and defendant told her to keep her mouth shut.
Defendant urges that because the judge, during the charge conference, acknowledged that the issue for the jury was not whether a robbery had occurred but "whodunit, " the court was required to instruct the jury on the State's burden to prove identification of the perpetrator beyond a reasonable doubt. We disagree.
Because defendant did not request an identification instruction nor object to the court's jury charge, we review the claimed error under the plain error standard. R. 2:10-2. "In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). A "[d]efendant is required to challenge instructions at the time of trial." State v. Morais, 359 N.J.Super. 123, 134 (App. Div.) (citing R. 1:7–2), certif. denied, 177 N.J. 572 (2003). Failure to do so creates a "presum[ption] that the instructions were adequate." Id. at 134-35.
Reviewed under that standard, we find no error, let alone plain error. Defendant was not implicated in this offense based upon an identification procedure that required an instruction on identification. Rather, defendant was implicated by Robertson, his co-defendant and girlfriend, who, at that time, was a cashier at the casino. Moreover, when the question was asked whether there should be an identification instruction with respect to Robertson's identification of defendant as ...