Opinion
DOCKET NO. A-0775-13T3
04-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FRED BELEN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Natalie A. Schmid Drummond, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Nugent. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-04-0912. Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Natalie A. Schmid Drummond, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Fred Belen appeals from a judgment of conviction entered after a jury found him guilty of two counts of theft and one count of conspiracy, and a judge sentenced him to an aggregate ten-year prison term. He presents two arguments:
POINT IWe affirm.
THE OMISSION OF AN INSTRUCTION ON THIRD[-] DEGREE CONSPIRACY TO COMMIT THEFT REQUIRES THE REVERSAL OF [DEFENDANT'S] SECOND[-]DEGREE CONSPIRACY TO COMMIT ROBBERY CONVICTION. (Not Raised Below).
POINT II
THE IMPOSITION OF AN AGGREGATE TEN-YEAR SENTENCE OF IMPRISONMENT FOR THE CONSPIRACY AND THEFT CONVICTIONS WAS EXCESSIVE.
In April 2011, a Camden County Grand Jury charged defendant Fred Belen and co-defendant Alexander Lara in a twenty-six count indictment with six counts of first-degree robbery, five counts of second-degree unlawful possession of a handgun, five counts of second-degree possession of a weapon for an unlawful purpose, seven counts of fourth-degree aggravated assault, and one count each of second-degree robbery, third-degree terroristic threats, and first-degree conspiracy to commit armed robbery. On co-defendants' motion for severance of each robbery count, the trial court severed counts fourteen to twenty-five from the other counts because, among other reasons, "[t]he offenses charged in [fourteen] through [twenty-five] are similar in character in that they all occurred on the evening of May 31st within the span of one hour [in] adjacent public parks in Camden County." The court also ordered that count twenty-six, conspiracy to commit robbery, be tried with the other counts. With the prosecutor's agreement, the court dismissed count twenty-five, fourth-degree aggravated assault, because it duplicated another count.
This appeal was calendared back-to-back with the appeal of co-defendant Lara, also decided today. State v. Lara, No. A-1158-13 (App. Div. April 12, 2016). --------
Defendant and co-defendant's jury trial took place in November and December 2012. The jury found defendant guilty on three counts: two counts of third-degree theft, N.J.S.A. 2C:20-3(a), as lesser-included offenses of first-degree robbery (counts eighteen and twenty-two); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 15-1(a)(1) (count 26). The jury found defendant not guilty of the remaining counts, fourteen through seventeen, nineteen through twenty-one, twenty-three and twenty-four. The court subsequently sentenced defendant to consecutive five-year prison terms with two years of parole ineligibility on the theft counts; to a concurrent eight-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the conspiracy count; and imposed appropriate penalties and assessments.
The State developed the following proofs at trial. On the night of May 31, 2010, between approximately ten and eleven o'clock, three robberies were committed by two men driving an SUV, the first in Newton Lake Park in Collingswood, the second and third in Cooper River Park in Cherry Hill Township. The parks were approximately one to two miles apart.
The first victim was robbed in Newton Lake Park. He was walking on a sidewalk when a two-tone Ford Explorer, white on top but darker on the bottom, pulled alongside the curb and stopped. According to the victim, "[t]hat's when they approached me, that's when they, you know, the guy took the gun and demanded . . . my money." The victim did not recall whether the driver or passenger wielded the gun, but the gun-wielding robber came within two feet and pointed the gun at him. When the victim said he had no money, the other man came from behind and tried to grab him, but he threw himself to the ground and started kicking and screaming. The man with the gun tried to shoot him by "pulling the chamber[.]" The gun did not fire. A car came along the road and apparently scared the perpetrators; they left without getting any money from the victim.
After the perpetrators fled, the victim saw two people walking their dog, approached them, and asked to use a cellular phone. He called the police. The parties stipulated a 9-1-1 call reporting a robbery at Newton Lake Park was received by a Camden County dispatcher on May 31, 2010 at 10:12 p.m.
When the victim testified at trial, he identified a handgun that looked similar to the one used in the robbery; identified a photograph of an SUV as the vehicle the two perpetrators were in when they pulled along the curb; and testified the perpetrators were approximately five feet, nine inches tall and weighed approximately 170 or 180 pounds. He did not identify defendant or the co-defendant at trial.
Camden County Park Police Sergeant Richard Watson received a dispatch at 10:12 p.m. concerning a crime in Newton Lake Park, which was in his jurisdiction. He arrived at the park within approximately ten minutes of receiving the dispatch and spoke with the first victim. The victim recounted the details of the robbery and said the perpetrators left in a two-tone Explorer, white on top, "and like a gray on the bottom." The Sergeant relayed the information to other patrol units.
While speaking with the first victim, Sergeant Watson was dispatched to the Lobster Trap parking lot on North Park Drive within the boundaries of Cooper River Park, where another incident was reported to have occurred. The Sergeant would eventually participate in the apprehension of the suspects.
The second victim was robbed in Cooper River Park after he had parked his car at a motel and was walking along North Park Drive to the Lobster Trap. After arriving at approximately 9:55 or 10:00 p.m., he walked along the sidewalk "[a]bout a quarter mile" toward a restaurant and was talking on his cellular phone with a friend when a white Ford Expedition or Explorer came toward him. Suddenly, a man jumped out of the vehicle's passenger side, pressed a gun to the victim's head, and said "give me whatever you have." The man was wearing a striped, polo t-shirt which the victim identified, along with a photograph of the white Ford Explorer, when he testified at trial. The victim handed over his money and the robber took a key from the victim's pocket, throwing it on the grass. The robber then returned to the vehicle, which drove away and returned a short time later headed towards Route 130. The victim used his cellular phone to telephone police, who arrived on the scene within five or ten minutes.
A short time after the police arrived, they left, and then later another officer returned. The officer drove the second victim "somewhere around Route 130 on the bridge[,]" and then about a half mile away from that location, where the second victim was shown two men. The victim identified one man as "the one that put that gun on my head," but did not identify the other man as being present at the robbery. During the trial, when asked if the man he identified as the robber was in court, the second victim identified the co-defendant. The victim also identified the gun that had been introduced into evidence at the trial as similar to the one the robber pointed at him.
A third victim was robbed while packing his car after a barbecue in Cooper River Park. The third victim had been at a barbecue at the park with a friend, the friend's wife, the friend's cousin, and others. The third victim was putting his belongings into the backseat of his car, which was parked on the sidewalk adjacent to where they had been barbequing. He noticed a white SUV pull alongside him and stop a few feet away, heard the door open, and then heard a voice. The third victim turned around to face a man pointing a gun at him saying, "[g]ive me your money." The robber was within arm's reach, pointing the gun at the third victim's head. As the victim reached for his money, the robber said he was taking too long and shoved him. The victim fell, got up, and heard three clicks as the robber squeezed the trigger three times. The robber was wearing a ski mask, "like a light green to almost like a gray color," and it had holes for the eyes and mouth. When the victim testified at trial, he identified a ski mask that looked similar in color, but the eye holes looked bigger.
The third victim told police the gun the perpetrator was holding was silver or chrome in color. He identified the gun during his trial testimony. He also identified a photograph of what appeared to be the Explorer. The third victim described the perpetrator as slightly taller than five feet, six inches tall, olive-skinned, and a little stockier than 155 pounds. He was unable to see the license plate on the SUV. He did not identify either defendant or the co-defendant at trial.
When the third victim was robbed, his friend was sitting in a nearby car and witnessed the crime. His friend got out of the car and said, "I got a gun, too, m***** f*****." The robber ran back to the Explorer, entered through the passenger side door, and he and the driver drove off toward a dead end. A short time later, they drove by again, going in the opposite direction. The third victim's friend testified at trial and identified a gray mask that appeared to be the one worn by the robber. The friend testified the robber also wore gloves.
A man in the park heard the third victim scream that he had been robbed at gunpoint and saw him point at the SUV as it drove away. The man got in his car and eventually gave chase. He was able to see a person driving and a person in the passenger side of the SUV. He was unable to keep up with the SUV, which at times was going eighty-five miles per hour. He was also unable to get a license plate number. He eventually saw a sheriff's van and told its occupants where he had last seen the Explorer. He thought the passenger was approximately his size, six feet, one inch tall and 265 pounds, but he could identify neither the driver nor the passenger.
Meanwhile, Sergeant Watson, who had been speaking with the first victim in Newton Lake Park, responded to the report of a second robbery near the Lobster Trap in Cooper River Park. As he drove onto North Park Drive he saw an Explorer matching the description of the suspect vehicle stopped at a red light on North Park Drive. He radioed for assistance. When the light turned green, the Sergeant continued to follow the Explorer. When the Explorer proceeded over a ramp on Route 130, Sheriff's Officer James A. Pacetti and his partner, India Gibson, who had received the broadcasts of the robberies, spotted the Explorer. When the Sheriff's Officers were next to the Explorer, they forced it into the guard rail on the ramp. The Sheriff's Officers and Sergeant Watson approached the Explorer, weapons drawn, and were soon joined by Patrolman Cranmer. The police arrested the driver, the co-defendant, and the passenger, the defendant. The Explorer was registered to the co-defendant. Sergeant Watson recorded in his report that defendant and the co-defendant were arrested at 10:46 p.m. Sergeant Watson transported the defendant from the arrest scene.
Sergeant Watson testified that a woolen hat dropped to the ground from the passenger's lap when the passenger was ordered to exit the vehicle. The Sergeant also saw a handgun laying on the floor, partially protruding from beneath the front seat. He recognized the handgun as a Ruger P89, which he identified at trial. According to the sergeant's arrest report, co-defendant was five feet, nine inches tall and defendant was five feet eight inches tall.
Robert Colangelo, a Camden County Park detective in May 2010, and the Park Police Chief when the case was tried, was also dispatched to the scene of the arrest. He photographed the Explorer, the handgun protruding from beneath the front passenger seat, a black type of mask, and money in the center console cup holders. According to the Chief, the gun had a magazine with seven rounds of ammunition and another bullet in the chamber. The Chief also recovered eighty dollars in currency, another glove on the running board of the vehicle, and a gray mask from the passenger side of the vehicle. Later, the vehicle was towed, a search warrant was obtained, and another gray mask was found shoved in one of the seats near the seatbelt. The police also seized the co-defendant's shirt.
Chief Colangelo testified that after defendant and the co-defendant were transported to a side street in separate vehicles, he had the second victim transported to the same parking lot. The Chief had an officer remove one of the suspects from a car, asked the second victim if he recognized him, had the suspect returned to the car, and then repeated the procedure with the other suspect. The second victim identified the robber. According to Chief Colangelo — and contrary to the second victim's trial testimony — the second victim identified the defendant but not the co-defendant.
The State also presented an expert in the operability and identification of firearms. He testified he fired the weapon in evidence, a Ruger Model P89 DC, nine-millimeter caliber handgun, which was operable. The expert explained there was a safety mechanism on the gun, a "de-cocker," which lowered the position of the hammer. When the hammer was lowered, the gun would not discharge because it "won't allow the firing pin to hit." Consequently, the gun would sound like it was going off because one would hear a loud click, but there is a "disconnect in there that won't allow the firing pin to hit."
Defendant and the co-defendant presented no witnesses at trial. The jury found them not guilty of robbing the first victim in Newton Lake Park. The jury found defendant guilty of theft from the second and third victims and of conspiracy to commit robbery.
On appeal, defendant first contends the court's instructions to the jury were erroneous, because the court omitted an instruction on conspiracy to commit theft, which the court should have added sua sponte. Among other instructions, the court charged the jury on first-degree robbery, the lesser-included offenses of second-degree robbery and theft, as well as accomplice liability. The court also instructed the jury on the elements of conspiracy to commit robbery. The court did not, however, instruct the jury on conspiracy to commit theft.
Defendant did not object to the court's charge. When a defendant does not object to a jury instruction at trial, an appellate court reviews the charge for plain error. R. 1:7-2; R. 2:10-2; State v. McKinney, 223 N.J. 475, 494 (2015). Plain error is a "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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." State v. Adams, 194 N.J. 186, 207 (2008) (alteration in original (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
"If neither party requests a charge on a lesser-included offense, the court must sua sponte provide an instruction 'when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.'" State v. Maloney, 216 N.J. 91, 107 (2013) (quoting State v. Thomas, 187 N.J. 119, 132 (2006)). "Only if the record clearly indicates a lesser-included charge — that is, if the evidence is jumping off the page — must the court give the required instruction." State v. Denofa, 187 N.J. 24, 42 (2006).
Here, the record did not clearly indicate that a charge on conspiracy to commit theft was warranted. In each of the three robberies, the perpetrator exited the Ford Explorer armed with a handgun which he pointed at the victim. In two instances, he pulled the trigger. A person who, in the course of committing a theft, puts the victim in fear of immediate bodily injury, is guilty of robbery. N.J.S.A. 2C:15-1(a)(2). Thus, as to each victim, the evidence was indisputable that one of the perpetrators wielded a gun. Stated differently, the evidence of defendant committing a lesser-included offense of conspiracy to commit theft was not "jumping off the page." Denofa, supra, 187 N.J. at 42.
Although defendant makes several conclusory assertions, such as "an instruction on the theft conspiracy was clearly indicated in the record[,]" he does not explain those conclusory assertions. He also argues,
once a substantive lesser-included offense such as theft is charged, it makes no sense and confuses the jury if other substantive offenses are charged as conspiracies, as with robbery, and a lesser-included offense such as theft, arising out of the same
incident and part and parcel of the robbery charges, is left orphaned as simply a substantive charge.Defendant has cited no authority for this proposition, which ignores the settled law that absent a request, a court is only required to charge on lesser-included offenses "clearly indicated" by the record. Accordingly, we reject defendant's argument.
In his second argument, defendant contends his sentence is excessive. He suggests the jury found that he was not "primarily involved in the incident[,]" and that the "bulk of the factors" enumerated in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), "weighed in favor of concurrent sentences." Lastly, he argues the "consecutive sentence for the two lesser-included theft charges that exceeds the eight-year sentence for the more serious crime of second-degree conspiracy is incongruous in light of the fact that the charges pertained to the same overall incident." We disagree.
When a judge has followed the sentencing guidelines, and the findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984). Here, the judge followed the sentencing guidelines, her findings of aggravating and mitigating factors are supported by the record, State v. O'Donnell, 117 N.J. 210, 215-16 (1989), and the sentence does not "shock the judicial conscience" in light of the particular facts of the case. Roth, supra, 95 N.J. at 364-65.
Moreover, the judge's imposition of consecutive sentences on the theft offenses was supported by the record. The judge stated her reasons for imposing the sentences consecutively, finding, among other things, the crimes defendant committed occurred at separate locations, involved separate and distinct events, and involved different victims. Yarbough, supra, 100 N.J. at 643. The judge "exercise[d] discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court]," so we may not second-guess her decision. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114 N.J. 383, 384 (1989)).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION