NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 7, 2012-Decided November 16, 2013 Motion for reconsideration granted.
Resubmitted January 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-11-3773.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Axelrad, Sapp-Peterson and Ostrer.
On January 30, 2013, we granted defendant Al-Tariq Wardrick's motion to reconsider our November 16, 2012 unpublished opinion upholding his conviction and sentence imposed for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree burglary, N.J.S.A. 2C:18-2 (count fourteen); fourth-degree criminal trespass, N.J.S.A. 2C:18-3 (count fifteen) and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count seventeen). State v. Wardrick, No. A-5278-08 (App. Div. November 16, 2012). In seeking reconsideration, defendant urges that because another panel, in an appeal by his co-defendant Jamil McKinney, concluded that the trial court committed reversible error in its instructions to the jury on first-degree robbery, he too is entitled to a new trial on that charge. We disagree and once again affirm the conviction.
In his direct appeal, McKinney, for the first time, argued that the trial court's instruction on first-degree robbery was erroneous and led to an unjust result. State v. McKinney, No. A-1160-09 (App. Div. May 17, 2012)(slip op. at 5). The panel noted that "all counsel agreed that the jury would only consider the first-degree robbery and second-degree burglary charges and no lesser charges." Ibid. Notwithstanding this agreement, the trial court instructed the jury on second-degree robbery only to correct itself to the jury by stating there was no second-degree robbery without further explanation. Id . at 7. The panel concluded that the trial court should have instructed the jury that "they should acquit [McKinney] if they found the elements of unarmed robbery but had doubt about the armed element." Id . at 8. Because the jury was unable to reach a verdict on the weapons offenses, the panel inferred that the jury "apparently believed that they should nonetheless convict him based on the unarmed elements of robbery" and therefore reversed. Ibid. While arguably such an inference may be drawn, it is not the inference we draw from the record.
At the outset, our Court has recognized that the decision of one co-equal court is not binding upon another co-equal court. Brundage v. Estate of Carambio, 195 N.J. 575, 593-94 (2008). In this instance, we disagree that the trial court's instruction on first-degree armed robbery warranted reversal as to defendant Wardrick.
Defendant not only failed to object to the jury instruction before the trial court, but failed to raise the issue of incorrect and confusing instructions related to count two in his direct appeal. The only alleged error in the jury instructions, which defendant raised, was set forth in Point Five of his merits brief, where he contended the court committed reversible error by failing to instruct the jury on second-degree robbery. However, the court instructed the jury on second-degree robbery, albeit mistakenly.
To summarize, if you find that the State has not proven beyond a reasonable doubt any one of the elements of the crime of robbery as I have defined that crime to you, then you must find Jamil McKinney and Al-Tariq Wardrick not guilty.
If you find that the State has proven beyond a reasonable doubt that Jamil McKinney and Al-Tariq Wardrick committed the crime of robbery as I have defined the crime to you, but if you find that the State has not proven beyond a reasonable doubt that Jamil McKinney and Al-Tariq Wardrick were armed with or used or purposely threatened the immediate use of a deadly weapon at the time of the commission of the ...