NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 08-12-1153 and 08-12-1154.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Jeremiah E. Lenihan, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and Waugh.
In this appeal, we consider defendant's arguments concerning, among other things, the judge's jury instructions and the form of the verdict sheet. We are satisfied that defendant was prejudiced by the judge's failure to identify for the jury the possible unlawful purpose or purposes on the two counts of possessing a weapon for an unlawful purpose and by the failure of the verdict sheet to allow for a clear expression of the jury's finding on the eluding charge. Finding no error with respect to the other convictions, we affirm in part, reverse in part, vacate the sentence imposed, and remand for further proceedings.
The jury heard evidence that, on September 30, 2008, at approximately 3:00 p.m., John Soriano and his sister, Mary Soriano, were in John's black Audi, stopped at a traffic light on Hillside Avenue in Springfield, when what John described as a silver or gray four-door Nissan or Toyota (later determined to be a Toyota) approached the Audi's left side. A man wearing a black "hoody" and "mask" exited the Toyota's rear right-side door and pointed a "pearlish" white-handled revolver at John's head, demanding that he exit the vehicle. John pushed Mary out the passenger door and then also exited, walking toward the back of the Audi. Another man wearing a "gray hoody" exited the Toyota's rear left-side door and entered the Audi's driver side, while the other culprit entered the Audi's front passenger side. John described the first man as "a dark skinned male, " but he was only able to see part of his face due to the ski mask the man was wearing; John described the second culprit as lighter skinned, about five foot eight or nine inches tall, but he also could not see any facial features because the culprit's face was covered.
John and Mary ran down South Springfield Avenue to a convenience store where John called the police. While speaking with the dispatcher, John noticed a police vehicle enter the store's parking lot while at the same time he saw the Toyota "going in the opposite direction, " and alerted the officer. John also observed that his Audi had not moved, apparently because John had retained the key and the vehicle was immovable without it.
The police officer who had appeared at the convenience store turned his vehicle around and chased the Toyota on South Springfield Avenue. Although he activated his emergency lights, the vehicle did not stop. Other officers joined in the chase as the Toyota weaved in and out of traffic on Springfield Avenue at a high rate of speed. The Toyota eventually rammed into another vehicle, at the intersection of Morris and Maple Avenues, and its two occupants ran from the scene. Two of the officers identified defendant as one of the two occupants of the Toyota and saw defendant throw a handgun onto a nearby roof as he fled. The weapon was retrieved and found to be fully loaded with one hollow point bullet and other regular rounds.
Defendant and Cornell T. Brown were eventually caught and arrested in Irvington. At the time of his arrest, defendant was wearing a white tank top, blue jeans and sneakers. A search of his person uncovered a small bag of marijuana.
Defendant was charged with: first-degree carjacking, N.J.S.A. 2C:15-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five); third-degree receiving stolen property, a firearm, N.J.S.A. 2C:20-7 (count six); fourth-degree possession of a hollow point bullet, N.J.S.A. 2C:39-3(f) (count seven); second-degree eluding, N.J.S.A. 2C:29-2(b) (count eight); third-degree receiving stolen property, a motor vehicle, N.J.S.A. 2C:20-7 (count nine); third-degree possession of a weapon, a motor vehicle, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count ten); fourth-degree possession of a controlled dangerous substance (CDS), marijuana, with the intent to distribute, N.J.S.A. 2C:35-5(a)(1)(b)(12) (count thirteen); second-degree possession of a weapon while committing a CDS offense, N.J.S.A. 2C:39-4.1(a) (count fourteen); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count fifteen). In a separate indictment, defendant was charged with second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7(b).
A three-day pretrial hearing took place to determine the admissibility of a statement made by defendant to a police officer prior to defendant being fully informed of his Mirandarights. The judge denied defendant's motion to exclude the statement.
A nine-day jury trial regarding the charges lodged against defendant and co-defendant Brown in the first indictment took place in June and July 2010. The jury could not reach a verdict on counts one, two and five (first-degree carjacking, first-degree robbery and fourth-degree aggravated assault), but found defendant guilty on the remaining counts. Defendant thereafter entered a guilty plea to the separate indictment, which charged him with being a person not entitled to possess a weapon, N.J.S.A. 2C:39-7(b).
On October 22, 2010, the trial judge denied defendant's motion for a directed verdict and sentenced him to an aggregate twenty-six-year prison term with a thirteen-year period of parole ineligibility. Specifically, defendant was sentenced to: an extended fifteen-year term, with a seven-and-one-half-year parole ineligibility period, on the eluding conviction; a consecutive three-year term, with an eighteen-month period of parole ineligibility, on the CDS distribution conviction; and a consecutive eight-year prison term, with a four-year period of parole ineligibility, on the conviction for being a person not entitled to be in possession of a firearm. The judge imposed concurrent terms on the other convictions.
Defendant appeals, arguing:
I. THE TRIAL COURT'S JURY INSTRUCTIONS HAD MULTIPLE DEFICIENCIES WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL (Not raised below).
II. THE TRIAL COURT EFFECTIVELY PRECLUDED THE JURY FROM RETURNING VERDICTS ON VIABLE LESSER-INCLUDED OFFENSES (Not raised below).
III. THE TRIAL COURT ERRED WHEN IT RULED ADMISSIBLE A STATEMENT WHICH DEFENDANT GAVE WITHOUT MIRANDA WARNINGS HAVING BEEN GIVEN.
IV. DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL WAS IMPROPERLY DENIED, AND DEFENDANT'S CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE.
V.THE TRIAL COURT ERRED IN NOT CONDUCTING A FULL HEARING CONCERNING JUROR IMPARTIALITY (Partially raised below).
VI. DEFENDANT'S SENTENCE IS MANIFESTLY ...