NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-10-1705 and 07-10-1755.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief).
Before Judges Messano and Mantineo.
Following a joint jury trial, defendant Karim A. Dorsey was convicted of first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; second-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). His co-defendant, Preston McCloud, was acquitted of all charges. The jury was reconstituted and, following a second trial, defendant was convicted of the single count in a second indictment charging him with second-degree possession of a firearm by certain persons, N.J.S.A. 2C:39-7(b).
After denying defendant's motion for a new trial, the judge sentenced defendant to a twelve-year term of imprisonment, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also imposed concurrent sentences on the remaining counts of that indictment, and he imposed a concurrent five-year sentence on the certain persons conviction.
Defendant raises the following points on appeal:
THE CONVICTION FOR FIRST[-]DEGREE ROBBERY SHOULD BE VACATED BECAUSE THE JURORS WERE NOT INSTRUCTED THAT THEY MUST UNANIMOUSLY AGREE ON WHO THE VICTIMS WERE. [(Not Raised Below)]
UNDER THE INSTANT FACTS, THE DEFENDANT'S CONVICTION FOR KIDNAPPING MUST BE VACATED BECAUSE THE CONFINEMENT WAS NOT FOR A SUBSTANTIAL PERIOD OF TIME AND WAS INCIDENTAL TO THE UNDERLYING CRIME. (Partially Raised Below)
THE JURY INSTRUCTION ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WAS FLAWED BECAUSE IT DID NOT SPECIFY THE UNLAWFUL PURPOSE. (Not Raised Below)
THE DEFENDANT WAS DENIED HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL WHEN THE COURT RECONSTITUTED THE JURY FOR THE SEQUENTIAL TRIAL OF CERTAIN PERSONS NOT TO HAVE A FIREARM OFFENSE AND THEN INSTRUCTED THE JURY TO REFER TO THE EVIDENCE SUBMITTED IN THE PREVIOUS TRIAL. (Partially Raised Below)
THE JUDGMENTS OF CONVICTION ARE REPLETE WITH ERRORS AND REQUIRE CORRECTION. We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's convictions. As we explain in further detail below, we remand the matter to the trial judge for entry of corrected judgments of conviction on both indictments consistent with this opinion.
The jury heard testimony that on August 10, 2006, three or four men invaded the near-empty apartment of the Locorriere family located on Market Street in Middlesex. The family was in the process of moving and most of the furniture and personal belongings were already out of their first-floor apartment.
On the evening of August 9, seventeen-year old L.L. (Lori) had invited about thirty people to a party in the family's backyard. Among those who remained after most people left were Lori's friends, D.A. (Donna), B.N. (Bobby), M.F. (Mike) and Meredith Lombard. Lori's brother, Steven Locorriere, who was going to take his sister and her friends home, entered the apartment and proceeded to the restroom.
All six of these individuals testified before the jury but none could identify the intruders. Each described the events in a generally consistent manner, although there were differences in their testimony.
Lori testified that, at about 3:30 a.m., Steven arrived and went to use the bathroom. She saw shadows outside the front door, and as she walked in that direction, four armed men rushed inside. One held a gun to her face, told her to close her eyes, forced her down onto the floor and took her purse, which contained an Ipod and her camera. Lori described this person as a lighter-skinned black man who was about a head taller than she. Two other men waited outside the bathroom door for her brother, and a fourth man bound her friends with duct tape. Lori's hands were taped together, and she was placed face down on the floor next to her friends.
Steven emerged from the bathroom and was taken into a bedroom by the intruders, interrogated about the location of jewelry in the house and asked why the basement door was locked. Lori heard a police officer identify himself at the backdoor, and one of the gunman said he would kill the officer if anyone moved or made a sound. A few minutes later, Lori and the others realized the intruders had left, and they called the police. Lori believed the entire incident lasted about thirty minutes.
Donna recalled three men barging into the house dressed in black with masks and guns. One man held a gun to Donna's face, kicked her and taped her hands and mouth. Donna believed all the men wore long-sleeved black shirts and two of them wore ski masks. Nothing was taken from Donna.
Meredith Lombard recalled seeing four men wearing ski masks rush in through the front door. She saw two of the men had guns and began to cry. Lombard's mouth was taped, and she was told to lie face down on the floor and warned to be quiet.
Mike testified that there were four men, although Bobby thought there were three. Both testified that all the men wore dark, baggy clothing and ski masks. Mike testified that a tall, heavy set man wearing a hoodie put a gun in his mouth and stated that if anyone moved or spoke, Mike would be shot. Mike described the gun as a silver or chrome revolver. The intruders did not take any items from Mike. Bobby saw only one man that was armed and did not recall anyone wearing gloves. Bobby's hands were taped behind his back, and he was told to move against the wall. The men went through Bobby's pockets, removed the battery from his cell phone and took his car keys.
Steven testified that he arrived at the apartment earlier, at about 1:00 a.m., and went to the bathroom. He rushed out of the bathroom when he heard muffled screaming and saw four tall African-American men, armed and wearing dark clothing and masks. The intruders backed Steven into a bedroom and told him to lie down on the floor. One put a gun to the back of his head and threatened to shoot him if he moved. Steven was searched, and some money, a watch, necklace and his car keys were taken. At one point, Steven heard the upstairs neighbor run down the back stairs, and, shortly thereafter, ...