NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 9, 2013
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-07-1185.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
Before Judges Hayden and Hoffman.
Following a jury trial, defendant John M. Clarke was convicted of first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count four). At sentencing, the trial judge merged counts two through four with count one, and imposed a seven-year custodial term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant now appeals and raises the following claims:
DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BY THE COURT'S ERRONEOUS INSTRUCTION ON ACCOMPLICE LIABILITY. (Not Raised Below).
THE TRIAL WAS TAINTED BY THE PROSECUTOR'S COMMENTS IN SUMMATION RELATING TO FACTS NOT SUPPORTED BY THE EVIDENCE.
THE COURT ERRED IN OMITTING A CRUCIAL SECTION OF THE JURY INSTRUCTION REGARDING TESTIMONY OF A COOPERATING CO-DEFENDANT. (Not Raised Below).
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE CONSPIRACY CHARGE AT THE CLOSE OF THE STATE'S CASE.
We reject these contentions and affirm.
The following facts are derived from the trial record. During the afternoon of October 16, 2008, defendant and three friends —— Joseph Autrey, Justin Caruso, Patrick Guinane —— went fishing by a small bridge in Little Egg Harbor Township. Autrey drove defendant and Guinane to the fishing spot in his black Honda Civic, while Caruso's girlfriend dropped him off at the fishing spot about thirty minutes later.
Shortly thereafter, three men, John Vo, Dung Huynh and Hien Do, arrived in Huynh's Toyota Highlander to fish at the same bridge. Thereafter, Do's fishing hook got stuck and he had to cut his fishing line. Needing a new lure, Do purchased one from Caruso for "[a]bout $5 or $6."
According to Caruso, after Do purchased the lure, defendant proposed to Caruso that they should rob the men because "he saw they had a lot of money on them." Caruso did not think defendant was serious, but indicated that he "would have his back" if defendant decided to go through with the robbery.
Caruso said his group continued to fish until it became darker outside and they ran out of beer. They then began packing up their fishing gear into Autrey's car. Caruso testified:
[W]hen I was in the car putting the cooler away, I just heard a loud pop noise
[defendant] took a knife and popped the tire (on the victim's car). It was a loud noise, like a gunshot almost.
Once I heard that, I looked up . . . and I saw [defendant] at the passenger's side of their vehicle. And in my mind, it clicked that, you know, obviously he was doing it. I really didn't think that he was going to rob them, you know, and I realized he was. And I ran over to the driver's side of the victim's vehicle, and I pulled out a knife from my sheath and held it to the driver.
During this time, Huynh was seated in the driver's seat of the vehicle, Vo was seated in the front passenger's seat, and Do was seated in the back seat. According to Vo, a man —— identified by Caruso as defendant —— opened the passenger's side door, put a knife to ...