NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 5, 2013
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-02-0310.
John W. Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief).
Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Glyn, of counsel and on the brief).
Before Judges Simonelli, Koblitz and Accurso.
Defendant Nasir Salaam appeals after a jury convicted him of armed robbery and other related charges and he later pled guilty to felony murder, all in connection with the armed robbery of a gas station. He appeals, arguing that his statement to the police should have been suppressed, the jury charge was improper and confusing, and his sentence was not sufficiently explained. We reject these arguments and affirm.
Atlantic County Indictment No. 08-02-0310 charged defendant with first-degree felony murder of Makhan Singh, N.J.S.A. 2C:11-3(a)(3) (count one); three counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (count two as to Singh, count three as to Sonam Tsering, and count four as to Tanzi Zepa); second-degree conspiracy to commit armed robbery of employees of the AAR Gas Station, N.J.S.A. 2C:15-1 and 2C:5-2 (count five); second-degree aggravated assault of Zepa, N.J.S.A. 2C:12-1(b)(1) (count six); second-degree possession of two .22 caliber revolvers for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven); third-degree unlawful possession of the two revolvers, N.J.S.A. 2C:58-4 and 2C:39-5(b) (count eight); third-degree hindering prosecution, N.J.S.A. 2C:29-3(b)(1) (count nine); and third-degree conspiracy to distribute heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3), and 2C:5-2 (count twelve). Co-defendants Basir Biggins, Darrick Hudson, Tyler Hart and Gina McCrosson were also charged in various counts of the fifteen-count indictment.
A jury found defendant guilty of the armed robberies of Tsering and Zepa (counts three and four), a lesser-included assault of Zepa (count six amended), the two weapons offenses (counts seven and eight), hindering prosecution (count nine) and conspiracy to distribute heroin (count twelve). The jury was unable to reach a unanimous verdict on the three other counts in the indictment charging defendant, which related to the robbery and felony murder of Singh (counts one and two) and conspiracy to commit armed robbery (count five). The judge declared a mistrial on these counts.
Before a second trial could commence, defendant moved pro se to suppress his April 20, 2007 statement to police. After conducting a testimonial hearing, the judge denied the motion. Defendant then pled guilty to felony murder (count one). The plea was conditional, permitting appeal of the denial of the motion for a new trial and to suppress the statement. R. 3:9-3(f). The plea agreement encompassed a maximum sentence for the plea and the convictions after trial. Defendant was sentenced to the maximum term permitted by the plea agreement, an aggregate term of forty years with a thirty-year period of parole ineligibility.
The evidence adduced at trial revealed the following facts. On March 9, 2007, defendant, who was seventeen years old at the time, was at Hudson's sister's house. Defendant, Hudson, and Biggins were smoking marijuana. They contacted McCrosson and Hart to pick them up. McCrosson drove her father's black Audi to the house.
When McCrosson and Hart arrived, defendant, Hudson, and Biggins all sat in the back seat of the Audi. Hart offered to sell defendant his .22 caliber revolver, which defendant inspected and agreed to purchase with drugs. Biggins informed the others that he was also carrying a .22 caliber handgun. Defendant and his accomplices decided to rob a gas station to obtain money for drugs. McCrosson parked the car near the AAR Gas Station.
When approaching the gas station, Hudson and Biggins both donned scarfs over their faces, and defendant wore a ski mask. Station attendants Tsering and Zepa were sitting outside. Defendant pointed his gun at them demanding that they "give it up." Meanwhile, Biggins and Hudson ran inside the mini-mart to rob the proprietor, Singh, at gun point. Biggins and Singh began "scuffling" and Biggins pistol-whipped Singh. Five shots were fired from inside the mini-mart. Hearing the gunshots, the attendants ran away.
Defendant fired one shot at the fleeing attendants, striking Zepa in the left lower flank, below his rib cage. Defendant then turned and fired two shots into the gas station. Singh was shot a total of six times and died at the scene.
An eye-witness followed the defendants running from the scene and obtained a license plate number for the black Audi. Police then proceeded to the home of McCrosson's father. Upon arrival, the police stopped McCrosson and Hart after they left the residence.
Police later arrested defendant, a juvenile, at Hudson's house. Defendant spoke to the police twice. On March 10 defendant's mother invoked defendant's right to counsel, terminating the questioning before defendant could incriminate himself.
After defendant retained counsel, his lawyer spoke to a co-defendant's attorney who suggested that the prosecutor would not offer a plea agreement to any defendant who had not given a statement. McCrosson, Hart, Biggins, and Hudson had already given statements. Before defendant was waived to adult court, defense counsel brought him to the Prosecutor's Office to waive his Miranda rights and give an incriminating statement to investigators from that office. Defendant claimed in this statement that Biggins murdered Singh. After giving his statement, the Attorney General's Office assumed responsibility for the prosecution.
At trial, the State introduced defendant's videotaped statement.
Defendant raises the following issues on appeal:
POINT I: THE DEFENDANT'S STATEMENT SHOULD HAVE BEEN EXCLUDED.
POINT II: INADEQUATE JURY INSTRUCTIONS, RIDDLED WITH ERRORS, INCLUDING MODIFICATIONS OF THE MODEL CHARGES AND FAILURE TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below.)
A. BECAUSE THE COURT'S CHARGE ON COUNT TWELVE IMPERMISSIBLY AMENDED THE INDICTMENT BY EXPANDING THE SCOPE OF THE CONSPIRACY FROM ONE CODEFENDANT TO FOUR CODEFENDANTS, THE CONVICTION ON THAT COUNT MUST BE VACATED.
B. BECAUSE THE COURT'S MODIFICATIONS TO THE MODEL CRIMINAL JURY CHARGE OF "INSTRUCTIONS AFTER JURY IS SWORN" OMITTED CRITICAL PORTIONS NECESSARY FOR BOTH EVALUATION OF THE STATE'S CASE AS IT WAS PRESENTED AND LATER FOR DELIBERATIONS, THE CONVICTIONS MUST BE VACATED.
C. BECAUSE THE COURT'S MODIFICATIONS TO THE MODEL CRIMINAL JURY CHARGE ON N.J.R.E. 404(B) EVIDENCE FAILED TO PROPERLY LIMIT THE JURY'S CONSIDERATION OF GINA MCCROSSON'S TESTIMONY, THE CONVICTIONS MUST BE VACATED.
D. THE ROBBERY CONVICTIONS MUST BE VACATED BECAUSE THE COURT'S CONSOLIDATED CHARGE ON THE THREE ROBBERY OFFENSES CONFUSED WHICH SEGMENTS OF THE MODEL CHARGE APPLIED TO WHICH ROBBERY AND WAS COMPOUNDED BY RELIANCE ON THE VERDICT SHEET OVER THE INDICTMENT.
E. BECAUSE THE INADEQUATE JURY INSTRUCTIONS FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, ...