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State v. Gray

Superior Court of New Jersey, Appellate Division

August 21, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
ERIC GRAY, a/k/a ERIC A. GRAY, and ERIC ANTOINE GRAY, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 9, 2013

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-06-0527.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Axelrad, Sapp-Peterson and Haas.

PER CURIAM.

A grand jury indicted defendant Eric Gray with first-degree robbery, N.J.S.A. 2C:15-1(a)(1) and (2) (Count One); second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Three); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(a) (Count Four). Following unsuccessful motions to dismiss the indictment and exclude the statement he gave to police based upon a Miranda[1] violation, the matter proceeded to trial where a jury convicted defendant of second-degree robbery and third-degree theft from a person, as lesser-included offenses of Count One. Defendant was acquitted of Counts Two and Three. After conducting an evidentiary hearing, the court denied defendant's post-trial motion for a new trial. At sentencing, the court granted the State's motion for an extended term and sentenced defendant as a "persistent offender" to a thirteen-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the second-degree robbery conviction. The third-degree theft conviction was merged into the second-degree robbery conviction, and the State dismissed Count Four of the indictment. The present appeal followed.

On appeal, defendant raises the following points:

POINT I
THE TRIAL COURT ERRED IN DENYING GRAY'S MOTION TO SUPPRESS HIS STATEMENT BECAUSE THE TOTALITY OF THE CIRCUMSTANCES ESTABLISH THAT HE WAS UNDER THE INFLUENCE OF NARCOTICS AND UNABLE TO KNOWINGLY AND VOLUNTARILY WAIVE HIS MIRANDA RIGHTS.
POINT II
GRAY'S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE TRIAL COURT REFUSED TO ALLOW DEFENSE COUNSEL TO CROSS-EXAMINE THE VICTIM ABOUT HIS ILLEGAL IMMIGRATION STATUS TO ATTACK HIS CREDIBILITY AND ESTABLISH BIAS.
POINT III
BECAUSE NO FORCE WAS USED AND NO BODILY INJURY RESULTED DURING THE THEFT, THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON SECOND-DEGREE ROBBERY AS A LESSER-INCLUDED OFFENSE TO FIRST-DEGREE ROBBERY.
POINT IV
THE TRIAL COURT'S INSTRUCTIONS ON THE LESSER-INCLUDED ROBBERY AND THEFT OFFENSES FOR COUNT ONE WERE FLAWED BECAUSE THE COURT FAILED TO INFORM JURORS THAT THEY COULD ONLY FIND GRAY GUILTY OF ONE LESSER-INCLUDED OFFENSE, FAILED TO PROPERLY DISTINGUISH THE OFFENSES, FAILED TO PROVIDE GRADINGS FOR THE THEFT OFFENSES, AND FAILED TO TAILOR THE CHARGE TO THE FACTS OF THE CASE. THE VERDICT SHEET FURTHER COMPOUNDED THIS ERROR BY FAILING TO INFORM THE JURORS THAT THEY WERE TO CONSIDER EACH LESSER INCLUDED OFFENSE INDIVIDUALLY. (NOT RAISED BELOW).
POINT V
THE CUMULATIVE IMPACT OF THE ERRORS DENIED GRAY A FAIR TRIAL.
POINT VI
THE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND SHOULD BE REDUCED.

The following additional points were raised in defendant's pro se supplemental brief:

POINT I
INDICTMENT SHOULD HAVE BEEN DISMISSED FOR FAILURE OF THE PROSECUTOR TO PRESENT EXCULPATORY EVIDENCE FOR THE GRAND JURY.
POINT II
THE COURT'S RULING DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AND DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL. U.S. [CONST. AMEND. VI, ] ART. 1[, ¶] 10 of the N.J. [CONST.]
POINT III
IT IS PREJUDICE TO THE DEFENDANT FOR THE JURY TO HAVE KNOWLEDGE OF HIS INCARCERATION STATUS AT TRIAL[, ] WHICH IS A VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
POINT IV
THE TRIAL COURT'S ERROR TO CHARGE THE JURY WITH SECOND[-]DEGREE ROBBERY WAS MISLEADING AND AMBIGUOUS, INSTEAD OF THEFT OF SERVICE AS A LESSER-INCLUDED OFFENSE, WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. VI, XIV, N.J. CONST. ART I[, ¶] 1, 10.
POINT V
THE TRIAL COURT'S RESPONSE TO THE JURY'S QUESTIONING DURING DELIBERATIONS REGARDING
IT[]S APPARENT CONFUSION OVER, "DO WE HAVE TO BE UNANIMOUS ON THE AMOUNT OF THE THEFT?" WAS MISLEADING, INAPPROPRIATE AND ERRONEOUS IN NATURE.
POINT VI
THE TRIAL JUDGE SHOULD HAVE SENTENCED THE DEFENDANT [TO] THE LESSER-INCLUDED OFFENSE [DUE] TO THE FACT THE EVIDENCE IS SUPPORTED BY ALL THE ELEMENTS OF THE LESSER-INCLUDED OFFENSE.

We have considered the points raised in light of the record and applicable legal principles. We reject each of the points raised and affirm.

These are the facts taken from the trial record upon which the jury relied in reaching its verdict. On the afternoon of March 13, 2009, Nikul Patel ("Nikul")[2] was working at his business, Vineland Deli and Gas, located at West Landis Avenue in Vineland. Nikul's relative and business partner, Dipak Patel ("Dipak"), was visiting Nikul. Nikul was short-staffed that day. Therefore, Dipak, who generally did not work at the business, lent a hand by pumping gas for customers. At approximately 4:30 p.m., a red Ford Expedition pulled into the gas station. The male driver asked for $20 worth of gas. While Dipak pumped his gas, the driver walked into the store, scanned the shelves for a short while, and returned to his car without making a purchase. He then asked Dipak if he had change for a $100 bill. Dipak directed the male to speak to Nikul, who handled the cash receipts. Dipak then walked towards the store.

The male told Nikul he would rather pay with a credit card instead of cash. He gave Nikul his credit card and followed him into a booth situated between two gas pumps where the credit card machine was stationed. When the credit card transaction failed, Nikul returned the credit card to the man, who then pointed a black gun with a wooden handle at Nikul's head and pulled at Nikul's pants pocket demanding money. Because the individual was wearing a cap and sunglasses, Nikul could only see his face from the nose down. Nikul quickly handed the male the money in his pocket, approximately $500. The individual returned to his vehicle and drove away.

Meanwhile, Dipak was standing in front of the store, about thirty-three feet away from the booth. He did not witness the actual robbery but he saw the man run from the booth, enter his vehicle and speed away. He also observed the individual put a gun in his pocket. Nikul noted the license plate number on the vehicle and immediately reported the robbery to police. When police arrived, Nikul provided them with a surveillance video of the store and the gas station.

Detective Angel Mercano was one of the officers who arrived at the scene. He spoke to Nikul and Dipak, who described the assailant and the vehicle he was driving. While the surveillance camera did not capture the actual robbery, it depicted the perpetrator walking into the store, following Nikul to the booth and handing him a credit card. Upon reviewing the surveillance video, Detective Mercano recognized the suspect as defendant, who had been his football teammate in high school approximately fifteen to nineteen years earlier. The detective relayed defendant's description over the police radio.

Two hours after the robbery, Officers Charles Capelli and Danny LaTorre of the Vineland Police Department received a tip that defendant had been sighted at a residence about five miles from the gas station. When the officers arrived at the address, they observed defendant exiting a red Ford Expedition parked in the driveway. The vehicle was missing its rear license plate. The officers approached defendant and instructed him to get on the ground. Before complying with their demands, defendant walked towards a nearby fence and threw an object over it. Following defendant's arrest, police impounded his vehicle. They then searched the area behind the fence and found $42 in single dollar bills amongst some garbage bags piled near an old refrigerator. Inside defendant's car, officers found cash in the amount of $226 secreted in the center console. In addition, they found a hooded sweatshirt, a hat and a pair of sunglasses inside the vehicle. They also recovered a crack pipe in the vehicle's bed, but did not recover a gun.

Police transported defendant to police headquarters, placed him in an interview room and administered Miranda warnings, which he waived. Defendant told investigators he went to the gas station that day, but denied any involvement in the robbery. When questioned about his whereabouts at the time of the robbery, defendant claimed he was meeting up with his friend, Pito, who offered him $15 for the use of his vehicle. Defendant picked up Pito on Landis Avenue and they drove to the parking lot of the WaWa convenience store on Park Avenue. Defendant waited for Pito in a nearby parking lot of a Sav-a-Lot store while Pito used the truck.

Defendant testified that earlier on the day of the robbery, he sold some scrap metal at a junk yard, after which he went to his girlfriend's house to shower and change his clothes. He then drove to Vineland Gas and Deli for some gas. He requested $20 worth of gas and proceeded into the store to purchase candy for his girlfriend's son. The store did not have the candy he wanted so he returned to his truck. Defendant explained that he asked for change for a $100 bill before he realized that he left his cash in the pants he wore earlier that day. Therefore, he handed Nikul his ATM card to pay for the gas and followed him to the nearby booth to process the transaction. Nikul swiped the ATM card twice, but the purchase was declined each time.

According to defendant, after the transaction failed, Nikul stated "[g]ive me money now." Defendant told Nikul that he left his cash at his girlfriend's house on Eighth Street but promised to return with payment, and even suggested that Nikul hold his driver's license to guarantee his return. Nikul refused and stated "you give me money now. You leave, I call cops, tell them you robbed me, take all money." Defendant tried to reason with Nikul, to no avail. Defendant testified that at that point, he told Nikul he would be right back; he returned to his vehicle and left the gas station. He denied robbing Nikul at gunpoint.

Defendant testified that while driving to his girlfriend's house, he received a call from his friend, Pito, who asked if he could use defendant's car to pick up his girlfriend and her family from the hospital. He stated that it was an emergency and offered to pay defendant $50. Defendant detoured to a local WaWa convenience store where Pito was waiting for him, gave Pito his vehicle, and waited there for him to return. About twenty- five minutes later, Pito returned with the vehicle and paid him $50 as promised.

Defendant claimed he requested the cash in single dollar bills as he intended to visit a gentleman's club later that evening. Before leaving the WaWa, defendant spent $8 on cigarettes and Slim Jim's, leaving him with $42. He then went to his girlfriend's house and retrieved the cash he had earned selling scrap metal earlier that day. As he returned to his vehicle, he noticed that his rear license plate was hanging on by one screw. He removed the plate to avoid losing the remaining screw. He then headed to his friend Orlando's house to borrow tools to re-attach the plate. When he arrived at Orlando's house, he noticed the old refrigerator Orlando had asked him to remove. He parked his vehicle in Orlando's driveway and was walking towards the refrigerator, which was behind a fence, to determine whether it would fit in his vehicle, when he heard the officers commanding him to freeze. As he turned around, he saw about five officers coming towards him with guns drawn.

According to defendant, one of the officers stated "[h]e ha[s] something in his hands." Defendant testified that he was holding the $42 he received from Pito in his right hand and a cell phone in his left. Fearing that the officers might mistake these items for weapons, he dropped them, put his hands up and was arrested.

Defendant explained that he did not tell Detective Mercano this rendition of the facts when questioned on the night of his arrest because the officer was convinced of his guilt and would not have believed him. He also claimed that he was paid $200 earlier in the week for a "moving job" he did with a friend, and he started out with $170 on March 13th. He admitted that he had seven prior convictions for third and fourth-degree offenses but denied committing the robbery.

I.

Prior to trial, defendant moved to suppress his statement, arguing that because he was under the influence of narcotics at the time he was arrested and questioned, he was unable to knowingly and voluntarily waive his Miranda rights. After a Miranda hearing during which Detective Mercano and Officer Capelli testified and the taped interrogation was played, Judge Benjamin C. Telsey observed that while defendant was notably intoxicated, there was no clear indication of the extent of his intoxication. Ultimately, relying on State v. Warmbrun, 277 N.J.Super. 51, 64 (App. Div. 1994), the judge ruled that because defendant was responsive to questions, was highly evasive when questioned about the robbery but talkative regarding other subjects, and was capable of crafting a narrative to fit the proofs alluded to by the officers, he displayed a level of lucidity that, under the totality of the circumstances, proved defendant was able to knowingly and voluntarily waive his Miranda rights.

Defendant argues the trial judge's ruling admitting his statement was erroneous because the court impermissibly relied upon defendant's efforts to deny the accusations lodged against him as proof that defendant's waiver was knowing, voluntary and intelligent. We disagree.

Judge Telsey determined that while it was clear defendant was not sober, the question was whether the defendant was so impaired that he was not competent to make an intelligent and voluntary waiver of his Miranda rights. He observed that defendant appreciated the fact he was under arrest and was being questioned by the police in connection with a robbery, he walked into the interrogation room under his own power, and was able to provide his personal information when asked. He noted that defendant's behavior was inconsistent throughout the interrogation, with defendant only becoming evasive and lethargic when questioned about the robbery, but at the same time conversing fluidly regarding an esoteric subject like the mortgage industry just minutes later. Judge Telsey also noted that defendant's speech was not slurred and that he maintained eye contact for most of the interview. Furthermore, he observed that defendant gave a detailed explanation of his day and was able to modify his story when the officers challenged its veracity. Thus, the judge concluded defendant had sufficient presence of mind to voluntarily and knowingly waive his Miranda rights.

The scope of appellate review of a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations and internal quotations omitted). Additionally, we defer to those findings of the trial judge which are "substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964) (citation and internal quotations omitted).

A suspect's absolute right to remain silent while under police interrogation and at trial is encompassed within the privilege against self-incrimination. State v. Ripa, 45 N.J. 199, 204 (1965). Therefore, waiver of that right must be knowing, intelligent and voluntary. State v. Hartley, 103 N.J. 252, 260 (1986) (citing Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 707). The State bears the heavy burden to demonstrate that a defendant has knowingly and voluntarily waived his or her right against self-incrimination. Ibid.

The fact that a suspect makes a statement while under the influence of an intoxicant does not render the statement automatically inadmissible. See State v. Wade, 40 N.J. 27, 35 (holding that "[a] confession made by a person while under the influence of drugs is not per se involuntary"), cert. denied, 375 U.S. 846, 84 S.Ct. 100, 11 L.Ed.2d 73 (1963). In gauging voluntariness, a court must consider the totality of all surrounding circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 862 (1973). In Warmbrun, the defendant argued the trial court erred in failing to exclude statements he made when he was too intoxicated to have knowingly and voluntarily waived his Miranda rights. Warmbrun, supra, 277 N.J.Super. at 61. We rejected his argument, finding that because defendant was "capable of communicating[, ] . . . was responsive in answering questions, and could answer correctly questions like his age, name, etc.[, ]" his statement was properly admitted. Id. at 64.

Here, Judge Telsey viewed the interrogation tape[3] and heard testimony from the interviewing officers. He found that, despite being intoxicated, defendant had no apparent difficulty understanding or responding to the officers' questions, gave correct personal information, discussed the mortgage industry and could walk under his own power. The judge's factual findings on the admissibility of defendant's statements were reasonably reached on sufficient credible evidence in the record. See State v. Johnson, 42 N.J. 146, 162 (1964); see also State v. Locurto, 157 N.J. 463, 474 (1999). Therefore, defendant's statement was properly admitted.

II.

Defendant argues the trial judge abused his discretion by precluding defense counsel from questioning Nikul regarding his residency status in order to attack his credibility and explore any biases he may harbor in favor of the State. Defendant contends the limitation placed upon cross-examining the witness on his immigration status violated his right to confrontation under the Sixth Amendment to the United States Constitution.

Judge Telsey conducted an N.J.R.E. 104 hearing outside the presence of the jury. At that time, Nikul explained he entered the country on a six-month visa that had expired but he was in the process of obtaining legal status, as his wife, a United States citizen, was sponsoring his application for citizenship. Defense counsel argued the jury should be allowed to know that Nikul was residing in the country illegally because his continued presence in the country was relevant to his credibility. The judge concluded that not only did that line of questioning carry very little probative value, but its limited value was substantially outweighed by the risk of undue prejudice to Nikul.

After the jury rendered its verdict, defendant moved for a new trial, arguing the trial court improperly barred him from cross-examining Nikul regarding his immigration status. This time, defendant argued that he should have been allowed to explore Nikul's motive to lie, as he stood to gain an advantage in his quest for citizenship by cooperating with the prosecution of this matter. Specifically, defense counsel explained that pursuant to 8 C.F.R. § 214.14(b)(2012), an immigrant who has been instrumental in the investigation or prosecution of criminal activity may become eligible for U-1 non-immigrant status.

Before ruling on the motion, Judge Telsey conducted a second N.J.R.E. 104 hearing to allow defense counsel to question Nikul on his knowledge of the regulation. Nikul stated he was unaware of the regulation or any other statutory benefits to immigrant crime victims, and denied discussing this issue with his immigration counsel. Furthermore, he testified that he initiated his application for citizenship months before the robbery occurred, and no U-1 non-immigrant status had been filed on his behalf.

Judge Telsey found Nikul credible and determined there was scant evidence to suggest Nikul's testimony against defendant was compelled by a desire to ensure the success of his application for citizenship. He was also satisfied that Nikul had no knowledge of the regulation and its benefits, and had made no effort to take advantage of same. He reaffirmed his earlier ruling and denied defendant's motion for a new trial.

A trial court's evidentiary ruling will be reversed only where "it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed.2d 306 (2001). The ruling is accorded substantial deference, Benevenga v. Digregorio, 325 N.J.Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), and will not be disturbed on appeal absence a showing that the trial court's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Kelly, 97 N.J. 178, 216 (1984).

N.J.R.E. 403 permits a trial judge to exclude relevant evidence "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of the issues, or misleading the jury, or (b) undue delay, waste of time, or needless presentation of cumulative evidence." While both the federal and New Jersey constitutions guarantee criminal defendants the right to confront witnesses, U.S. Const. amend VI; N.J. Const. art. I, ¶ 10, the right is not absolute. State v. Harvey, 151 N.J. 117, 188 (1997). The right may, "in appropriate circumstances, bow to competing interests." State v. J.A.C., 210 N.J. 281, 298 (2012) (citation and internal quotations omitted). See also Chambers, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 309 (1973). The cross-examiner is not permitted to "'roam at will under the guise of impeaching credibility.'" State v. Gaikwad, 349 N.J.Super. 62, 87 (App. Div. 2002) (quoting State v. Engel, 249 N.J.Super. 336, 375 (App. Div.), certif. denied, 130 N.J. 393 (1991)). The critical inquiry in determining the scope of cross-examination is whether the evidence is relevant and necessary to a fair determination of the issues. See State v. Garron, 177 N.J. 147, 171 (2003).

Here, before denying defendant's motion for a new trial, Judge Telsey allowed defendant to cross-examine Nikul about whether he fabricated the robbery to qualify for non-immigrant status as a crime victim under 8 C.F.R. 214.14(b). That examination yielded no evidence that Nikul harbored a bias or motive to lie for personal gain. Likewise, during the earlier N.J.R.E. 104 hearing, defendant also failed to establish that Nikul's status as an illegal immigrant was sufficiently probative so as to outweigh the risk of prejudice to the witness. See Serrano v. Underground Utils. Corp., 407 N.J.Super. 253, 278-80 (App. Div. 2009) (finding that the relevance of disclosing a witness's prior statements about immigration status did not outweigh the prejudicial impact of such disclosure).

The record here demonstrates that disclosure of Nikul's immigration status would serve no purpose other than a "generalized invocation of witness 'credibility' issues, " which is insufficient to overcome the substantial prejudice likely to flow from such disclosure. Ibid. Defendant's reliance upon State v. Liviaz, 389 N.J.Super. 401, 403 (App. Div.), certif. denied, 190 N.J. 392 (2007), where we held that a pre-trial intervention (PTI) applicant's immigration status may be considered in determining whether a defendant should be admitted into the program is misplaced. Defendant conflates consideration of the guidelines for admission into PTI with the considerations governing the admissibility of evidence in a jury trial, where evidence must not only be relevant, but its probative value must outweigh the risk of prejudice to the witness before the jury. N.J.R.E. 403.

We are satisfied Judge Telsey undertook the appropriate balancing of factors before concluding the probative value of disclosure of Nikul's immigration status was not sufficiently probative to overcome the prejudice that may result from such disclosure. Therefore, we conclude Judge Telsey did not abuse his discretion in precluding cross-examination of Nikul concerning his immigration status.

III.

Defendant next contends Judge Telsey erred by instructing the jury on second-degree robbery when the evidence at trial did not establish use of force or threat of force. More specifically, defendant urges that since the only evidence of force presented at trial was the threat of the use of a handgun, and the jury, by acquitting defendant of first-degree robbery and the weapons offenses, essentially did not believe defendant possessed or used a weapon in the commission of the robbery, there remained no other facts in evidence to support a finding of force or threat of force. We disagree.

In instructing the jury on robbery, the trial judge followed the model jury charge. The jury was told that robbery is a crime of the second-degree that is enhanced to a first-degree crime when "the actor is armed with or uses or threatens the immediate use of a deadly weapon." The judge also explained the elements of robbery and reminded the jury that the State bore the burden to prove defendant "threaten[ed] another with or purposely put[] [him] in fear of immediate bodily injury" "in the course of committing a theft."

It is well-settled that appropriate and proper jury charges are essential in a criminal case to assure a fair trial. State v. Reddish, 181 N.J. 553, 613 (2004); State v. Green, 86 N.J. 281, 287 (1981). When a defendant identifies an error in the charge, the charge must be evaluated in its entirety. State v. Figueroa, 190 N.J. 219, 246 (2007); State v. Wilbely, 63 N.J. 420, 422 (1973).

Unquestionably, second-degree robbery is a lesser-included offense of first-degree robbery, as it can be established by "proof of the same or less than all the facts required" to prove first-degree robbery. N.J.S.A. 2C:1-8(d)(1). Notably, the only difference between first and second-degree robbery is the possession, use, attempted use or credible threat of immediate use of a deadly weapon. N.J.S.A. 2C:15-1(b). However, a court "shall not charge the jury with respect to an included offense unless there is a rational basis to convict a defendant of the lesser-included offense." N.J.S.A. 2C:1-8(e). See also State v. Denofa, 187 N.J. 24, 42 (2006). Such rational basis must be sufficient "for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense." State v. Savage, 172 N.J. 374, 396 (2002) (citing State v. Brent, 137 N.J. 107, 113-14 (1994)). Where a lesser-included offense is objected to or not requested by the defendant, a trial court's independent obligation to instruct the jury on a lesser-included charge is triggered "only where the facts in evidence clearly indicate the appropriateness of that charge." Id. at 397 (citation and internal quotations omitted). See also State v. Jenkins, 178 N.J. 347, 361 (2004). The record here supports Judge Telsey's decision to instruct the jury on second-degree robbery.

Under N.J.S.A. 2C:15-1(a), a person commits robbery if, during the course of committing a theft, the person:

1)Inflicts bodily injury or uses force upon another; or
2)Threatens another with or purposely puts him in fear of immediate bodily injury; or
3) Commits or threatens immediately to commit any crime of the first or second degree.
Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor . . . is armed with, or uses or threatens the immediate use of a deadly weapon.

Thus, second-degree robbery can be founded upon the use of force or upon threatening or purposely putting the victim in fear. N.J.S.A. 2C:15-1(a)(1) and (2). Nikul testified that defendant pointed a gun at him during the robbery and also pulled on his left pants pocket. Furthermore, Nikul explained that he was in fear for his life during the encounter. While the jury did not find the State proved beyond a reasonable doubt that defendant was armed with a gun at the time he committed the offense, there was a rational basis to conclude, from defendant's actions, that he "threatened with or purposely put[] [Nikul] in fear of immediate bodily injury[.]" N.J.S.A. 2C:15-1(a)(2).

We reject defendant's attempt to analogize the incident here, in the absence of a weapon, to a shoplifting or purse-snatching. Relying on State v. Sein and its progeny, defendant argues that his action of pulling on Nikul's pants pocket cannot satisfy the "use of force" element of the robbery statute as it is an exertion of no more force than is required to "remove the property from the victim's person." 124 N.J. 209, 212 (1991) (quotation marks and citation omitted).

In Sein, the defendant snatched the victim's purse from under her arm as she walked to her car. Id. at 210-11. He was convicted of second-degree robbery. Id. at 212. In affirming our reversal of the defendant's conviction, the Court reviewed the legislative history of the robbery and theft statutes and reasoned that "[t]he theft statute includes purse-snatchings from the grasp of an owner, while the robbery statute includes purse-snatching that involve some degree of force to wrest the object from the victim." Id. at 217.

Defendant's actions in this case cannot be described as purse-snatching or pick-pocketing unbeknownst to the victim. There was testimony that defendant demanded money and brandished a weapon, while pulling on the victim's clothing and rummaging through his pockets. This is force that exceeds that which is necessary to "wrest" the victim's money from him. Furthermore, defendant's assaultive and intimidating conduct placed the victim in fear of immediate bodily harm. As these facts provided Judge Telsey with a rational basis to charge the jury on second-degree robbery, he did not commit reversible error in doing so.

IV.

Defendant additionally contends the trial judge erred by failing to inform the jury that the theft and robbery offenses had to be considered separately, that they could only find defendant guilty of one of the lesser included offenses, that the two theft offenses varied in degree of seriousness, and failed to mold the charges to the facts of the case. Moreover, defendant complains the verdict sheet confused the jurors, leading them to believe they were required to deliberate on the lesser-included theft offenses despite having convicted defendant of second-degree robbery. In response, the State argues the trial judge took care to instruct the jury appropriately but more importantly, defendant did not suffer any prejudice or penal consequences from the simultaneous theft and robbery convictions since the two convictions were merged for sentencing purposes.

Where a defendant fails to object to a jury instruction before the trial court, the plain error standard of review applies on appeal. R. 1:7-2; State v. Singleton, 211 N.J. 157, 182 (2012). Plain error is error that is "clearly capable of producing an unjust result[.]" R. 2:10-2. In the context of erroneous jury charges, "plain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Singleton, supra, 211 N.J. at 182-83 (quoting State v. Chapland, 187 N.J. 275, 289 (2006) (citation and internal quotation marks omitted)).

After instructing the jury on the indicted charges, the judge read the model jury charges for the lesser-included offenses to robbery, excluding second-degree robbery, which was explained during the instruction on first-degree robbery. Contrary to defendant's contention, the court did give the jury some instruction on the gradation of the theft offenses:

Since the value of the movable property determines the degree or severity of the crimes, the State must prove its value beyond a reasonable doubt.
If you find . . . [d]efendant guilty of the [t]heft offense, then you must indicate whether you find the amount of money involved as at least $200 but does not exceed $500, or is less than $200.
Theft is a crime of the third degree if it is taken from the person of the victim. Person of the victim; you may use the common meaning of that term.
An example I would use is, if I have this pen in my hand and someone comes and takes this pen from my hand, that would be an example of it being taken from the person of me, in my example.

This charge mirrors the model jury charge on theft of movable property under N.J.S.A. 2C:20-3(a). However, aside from telling the jurors that theft from the person of the victim is a third-degree crime, the court failed to read the portion of the jury charge that addressed fourth-degree theft and the disorderly persons offense. However, there were no objections to these instructions as read.

The next day, the jurors sought clarification about whether they needed to unanimously find the value of the movable property in addition to determining that a theft occurred. The judge agreed that the verdict sheet may have been confusing and clarified that the jury would only have to reach the question of the value of the movable property if they did not find that defendant committed a theft from the victim's person. He explained that if they found defendant guilty of theft from the person of the victim, which was 1(c) on the verdict sheet, they need not proceed to 1(d), which addressed theft of property worth at least $200 but no more than $500, or 1(e) regarding theft of property valued under $200.

Defendant has contended, however, the verdict sheet contributed to the jurors' confusion as it directed them to deliberate on the theft offenses despite having found defendant guilty of second-degree robbery. Question 1 queried the jurors as to their finding on the second-degree robbery offense and directed them to Question 1(a) to make a finding as to whether defendant had a weapon during the commission of the crime. The verdict sheet then stated "IF YOU FIND THE DEFENDANT GUILTY, PLEASE PROCEED TO QUESTION 2 ON PAGE 2 [weapons offenses]. IF YOU FIND THE DEFENDANT NOT GUILTY OF QUESTION 1(a) PLEASE PROCEED TO QUESTION 1(b) [theft offenses]." As a result, the jury found defendant guilty of two lesser-included offenses of Count 1.

Defendant argues that by highlighting only the second-degree and third-degree lesser-included offenses, the jury was precluded from the option of convicting defendant of the fourth-degree or disorderly offense. We disagree. Although the judge never articulated the gradation of the charges listed in 1(c) and 1(d), he explained that the severity of the crime corresponded with the value of the property stolen. Moreover, when the jurors sought clarification on this point, they were informed that the theft offenses were separate and distinct and should be so addressed.

Defendant also submits that had the court clarified that defendant could only be convicted of one of the lesser-included offenses to the crime of robbery, they may have opted to convict him of third-degree theft alone or of a crime of a lesser degree. There is no evidence in the record to support that conclusion. The jury could very well have acquitted defendant of all the theft charges, as they were not obligated to select any of the lesser-included offenses. One explanation of the jury's decision to convict defendant of both second-degree robbery and third-degree theft is that they believed defendant took the money from Nikul's person and, in the process, placed him in fear of immediate bodily harm. More importantly, the errors in the jury charge and verdict sheet clearly did not create an unjust result because defendant suffered no penal consequences as a result of being convicted of two lesser-included theft offenses. N.J.S.A. 2C:1-8(a) contains an ameliorative mechanism. It instructs the judge to make a "determination barring multiple convictions . . . after a verdict or finding of guilt." Furthermore, we have previously held that "submission to the jury of two criminal charges, convictions of both of which would be subject to mandatory merger, is not error." State v. Lawson, 217 N.J.Super. 47, 50 (App. Div. 1987) (citing State v. Moron, 73 N.J. 79, 82 (1977)); see also N.J.S.A. 2C:1-8(e). Here, in keeping with N.J.S.A. 2C:1-8(a), defendant's third-degree theft from a person conviction was merged with his second-degree robbery conviction. Therefore, there was no reversible error in the jury's verdict.

V.

The remaining points raised, namely, that the cumulative errors, when viewed in the aggregate, deprived him of a fair trial and the excessiveness of his sentence, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Further, the points raised in defendant's supplemental brief have either been addressed in connection with the points raised in the brief submitted on defendant's behalf or are equally without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.


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