Opinion
06-16-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD E. COPELAND, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. JARON ALSTON, a/k/a ALSTON ALSTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Richard E. Copeland (Gilbert G. Miller, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Jaron Alston (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-05-00775.
Joseph E. Krakora, Public Defender, attorney for appellant Richard E. Copeland (Gilbert G. Miller, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Jaron Alston (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the briefs). PER CURIAM
Following a jury trial held October 18 to 21, 2011, defendants, Richard E. Copeland and Jaron Alston, were convicted of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count three); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count four).
In these appeals, which we calendared back-to-back and have consolidated for purposes of issuing a single opinion, Copeland raises the following points:
POINT I
THE TRIAL COURT ERRED IN INTIMIDATING DEFENDANT FROM OPTING TO HAVE SECOND AND FOURTH DEGREE AGGRAVATED ASSAULT CHARGED AS LESSER-RELATED OFFENSES OF THE ARMED ROBBERY CHARGE BY WARNING HIM THAT CONSECUTIVE SENTENCES FOR A ROBBERY AND AGGRAVATED ASSAULT WOULD BE A REALISTIC POSSIBILITY IF HE WERE TO BE CONVICTED OF BOTH ROBBERY AND AGGRAVATED ASSAULT.
POINT II:
THE TRIAL COURT'S JURY INSTRUCTIONS WERE CLEARLY ERRONEOUS IN THEIR FAILURE TO ADVISE THAT DEFENDANT COULD BE GUILTY AS AN ACCOMPLICE TO A LESSER CRIME THAN THAT WHICH WAS COMMITTED BY A PRINCIPAL ACTOR. (NOT RAISED BELOW).
POINT III:
DEFENDANT'S SENTENCE IS MAINFESTLY EXCESSIVE.
Alston raises the following points:
POINT I:
THE JUDGE'S FAILURE TO INSTRUCT THE JURORS THAT DEFENDANT COULD BE FOUND GUILTY OF ROBBERY AS AN ACCOMPLICE, ON THE BASIS OF HIS OWN MENTAL STATE, EVEN IF THE CO-DEFENDANT HAD THE MENTAL STATE FOR ARMED ROBBERY, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (RAISED IN PART BELOW).
POINT II:
DEFENDANT'S SENTENCE IS MAINFESTLY EXCESSIVE.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
I.
On December 14, 2008, at approximately 2:30 a.m., Jerome Griffin left his job as a bouncer at the El Rancho bar on French Street in New Brunswick and began to walk towards the 7-Eleven convenience store on George Street. Within moments, two men approached him from behind and followed him for about one block. Even though he had no prior interaction with them, he felt they were coming towards him. When the men were right behind him, Griffin moved to the right, intending to turn around and defend himself. When he partially turned around he heard a gunshot, then one of the men held a gun to his face. One of the men said "yo, don't do it . . . just let us take it," which Griffin interpreted to mean "don't do anything . . . [j]ust give me the money[.]" The man without the gun went in Griffin's pocket to take money he received that evening as salary. Griffin had been shot in the past and did not resist.
The two men then instructed Griffin to walk up the street while they walked in the other direction. After there was some separation, Griffin used his cellular telephone to call 9-1-1. He described the suspects to the dispatcher as two black males wearing dark clothing, walking up Bayard Street towards the railroad tracks.
Detective Andrew Weiss and Officer Christopher Bornheimer of the New Brunswick Police Department responded, accompanied by Investigator William J. Powers of the Middlesex County Sheriff's Office. As they drove to the scene, Weiss and Bornheimer saw two men who matched the description given by the dispatcher. No one else was present. They exited the vehicle with their weapons drawn and instructed the men to put their hands up. One of the men, later identified as Alston, put his hands above his head and rested them on a nearby fence. Weiss patted him down and found a handgun loaded with eleven rounds in the magazine and one round in the chamber, ready to be fired. The second man, later identified as Copeland, stood in front of the officers with his hands in his pockets. Copeland refused to remove his hands from his pockets as ordered by the officers, so Bornheimer and Powers used force to take him to the ground and held him face down to conduct a field pat down. Bornheimer found $145 in Copeland's pants pocket. He did not recall finding anything else on Copeland's person, or having one of the other officers double-check his count of the money.
New Brunswick Police Officer Ryan Daughton responded to Griffin's location and transported him to a lot near the railroad tracks to conduct a "show up." Griffin remained in the police vehicle, about fifty to 100 feet from where Alston and Copeland were standing, and Officer Daughton shined a spotlight on the two men. Griffin was "one hundred percent positive" that they were the men who robbed him. Griffin subsequently gave a sworn video statement at the police station.
At around 8:00 a.m., New Brunswick Police Officer Mark Cichowski transported Copeland to the Middlesex County Jail. At that time, Copeland had $9 on his person. Dana Davis, the Corrections Officer who processed Copeland at the jail, recorded the $9 on an intake form.
Two days later on December 16, Griffin took the sweatshirt and jacket he had been wearing when he was robbed to the police station after realizing that a bullet had passed through his clothing. Detective Michael Kosko took the items into evidence, and gave Griffin the $145 that was taken from Copeland by Officer Bornheimer when he conducted the field pat down.
At trial, the parties stipulated that the handgun recovered from Alston on the morning of the robbery was a .40 caliber Smith & Wesson firearm stolen from Torri Dobson of Allentown, Pennsylvania on September 10, 2008. New Jersey State Police Detective Sergeant Donald Mundorff testified that neither defendant possessed a firearms permit, and the handgun was not registered to anyone in New Jersey.
Griffin testified on behalf of the State. He said that he called 9-1-1 in the early morning of December 14, 2008, because he "was robbed at gunpoint" and his assailants took his pay, which was $140, comprised of seven twenty-dollar bills. Upon being shown a receipt indicating that the police department gave him $145 two days after the incident, he amended his previous answer to include a five dollar bill, but maintained that he only remembered the seven twenty-dollar bills being taken. Griffin testified that he was wearing a "huge" jacket when he was confronted, and as he turned to defend himself, his jacket "more than likely hit the gun." He stated, "when I turned to try to hit one of these guys, I probably hit the gun and it went off. I don't think they were intentionally trying to shoot me."
Griffin also acknowledged that almost eighteen months after the incident, on August 6, 2010, he swore in an affidavit given to Copeland that Copeland "had nothing to do with it" and that Copeland did not have a gun at the time of the robbery. He wrote that Copeland "didn't put his hands on [him,]", "didn't threaten [him] and didn't cause [him] any mental or physical harm or put [him] in fear," other than the fear of losing his money. Griffin testified that he wrote the affidavit because he "d[idn]'t want anything to do with the case." At that time, he, Alston, and Copeland, were all incarcerated in the Middlesex County jail. Griffin testified that he was housed in a different section of the jail than defendants, but did not remember if either defendant approached him while incarcerated.
Griffin claims he wrote the August 6, 2010 affidavit because he "was sitting in jail . . . [and] d[idn]'t want to be bothered with it." Although he did not remember "exactly what happened" on the morning of December 14, 2008, he knew that he had been robbed and remembered the faces of Alston and Copeland. He did not know which person held the gun. Griffin testified that he was disinterested and wanted to drop the charges against Alston and Copeland. He only testified because he was subpoenaed. Nonetheless, he identified Copeland and Alston in court as the men who robbed him.
Griffin was also confronted with a sworn videotaped statement, from a September 23, 2010 meeting with the Middlesex County Prosecutor's Office, given in response to Griffin's August 6 affidavit. In the video, which was shown to the jury, he stated that he was "drunk as hell" the night of the incident and nothing was taken from him. At trial, Griffin initially testified that he had not been drinking prior to the incident. However, when confronted with the video statement, Griffin wavered and testified that it was "more than likely" that he had been drinking prior to the robbery.
Copeland's counsel further sought to impeach Griffin's credibility by introducing his four prior convictions for aggravated assault with a weapon, burglary, violation of parole and possession of heroin.
At the time of trial, Griffin was serving a probationary term for this conviction.
Ryan Cirelli testified on behalf of the State. At about 2:30 a.m. on December 14, 2008, he exited his home and observed three black men, one tall and two shorter and stockier, standing together across the street. He planned to approach them to borrow a cigarette but decided against it after getting a feeling that "something was not right." Cirelli recognized the taller man as a former bouncer at one of the local bars. After he walked away, Cirelli heard a "pop and a flash." He turned around and saw the taller of the three men walking away with his hands above his head. The two shorter men were moving slowly in the opposite direction. Cirelli believed he heard a gunshot, although he did not see a gun or know who fired the gun. He ran into a nearby alley near a church. He remained there for about a minute, when he saw the taller man, later identified as Griffin, across the street talking on his cell phone. Cirelli approached Griffin and was with him when the police arrived.
Cirelli testified that the two shorter men, who were about five feet eight inches tall, were wearing hooded sweatshirts. One was wearing a Yankee hat. The only time he lost sight of them was during the estimated one minute that he spent in the alley. When he exited the alley, Cirelli re-gained sight of the men, who were walking "a few feet down the road" from where he previously saw them. He knew it was the same men because of their clothing. He identified Copeland and Alston in a "show up" after they were apprehended by the police. Cirelli also assisted the police in searching for a bullet casing where the gun was fired. After they could not find anything, Cirelli was transported to the police station to give a statement.
At around 8:00 a.m., Cirelli found a shell on the porch of a house about fifteen feet from where he observed the three men standing. He used a plastic bag to pick it up and brought it to the police station, where it was secured as evidence.
New Brunswick Police Detective Michael Kosko also testified that he took Griffin's clothing into evidence on December 16, 2008. He swabbed what he believed to be a bullet hole and secured the jacket and the swab box in the property room. Detective Kosko took the jacket and the swab box to the lab on January 7, 2009. On March 25, 2009, he retrieved the items and returned them to the property room at the police station.
The court accepted Vincent Desiderio of the New Jersey State Police Office of Forensic Sciences, as the State's expert in gunshot residue analysis. He analyzed Griffin's jacket, finding one hole on the back of one of the sleeves and another in the center of the back of the jacket. Each hole had a corresponding hole on the inside of the jacket, so Desiderio analyzed a total of four holes. The hole located in the center of the outside of the jacket tested positive for gun powder residue. Desiderio opined that hole was created by a shot fired while the muzzle of the firearm was "either in contact or very close contact with the jacket." Desiderio did not find any residue surrounding the other three holes. He noted that the hole corresponding to the one with gunshot residue showed "some of the fill from the fabric pushing out[,]" which was "an indication, [but] not definitive proof," of an "outward trajectory." Although it was possible that all four holes were caused by the same bullet, Desiderio believed they "most likely" were caused by "at least two bullets."
In addition, the court accepted Sergeant Gary Mayer, Somerset County Prosecutor's Office, as the State's expert in forensic ballistics. He testified that the shell casing found by Cirelli was fired from the gun taken from Alston by Weiss.
Neither defendant testified at trial.
II.
At the jury charge conference, defendants requested that the judge instruct the jury on the lesser-included offense of second-degree robbery, and the lesser-related offenses of second-degree aggravated assault and fourth-degree aggravated assault. See N.J.S.A. 2C:12-1(b)(2) and (4). The court initially denied the request, finding that it would only charge those crimes contained in the indictment.
Defendants contested this ruling based on the holdings in State v. Thomas, 187 N.J. 119 (2006), and State v. Grissom, 347 N.J. Super. 469 (App. Div. 2002), arguing that the court was required to charge the jury on lesser-included offenses suggested by the facts at trial. Defendants contended that the jury be charged with the lesser-included aggravated assaults, based on the shooting, which counsel argued constituted an "attempt to cause bodily injury with a deadly weapon." The defendants later agreed with the court that these were not lesser-included offenses, but were rather lesser-related offenses.
After reviewing case law, the trial court determined that "where a defendant appropriately waives his right to the protections of being informed through [g]rand [j]ury proceedings [of] the nature of the charges[,] . . . related, appropriate charges" can be provided to the jury at the defendant's request. The court then suggested a five minute recess to permit defendants to confer with their counsel, stating:
[Defendants] need to understand that if convictions come in on all counts, they're looking at consecutive sentences because these are not lesser includeds. They're related offenses. And they could be looking at consecutive sentences.
Nothing stops you from arguing they did not do anything other than point and this is what they're guilty of. But if I put it in the verdict form at their request and they
waive the protection of the [g]rand [j]ury presentation and the jury comes back, yes, he has committed armed robbery; yes, they pointed a weapon; yes, they put these people in fear recklessly of bodily injury, and they come back, those are separate elements, separate offenses. And under our law quite possibly, if not likely, consecutive sentences.
So before you do this understand this is probably why lawyers don't ask for it.
. . . .
But if I put it in as a verdict and the jury comes back guilty, you are in effect almost getting tried by accusation. I mean, you know, in a sense. They can get consecutive sentences. This is not a lesser included. Under Yarbough it's a separate offense. And it...would lead to a very legitimate argument on the State's behalf that it's a consecutive sentence under Yarbough. And I cannot tell you as a court what I would do.
[(emphasis added).]
State v. Yarbough, 100 N.J. 627 (1985).
After defendants conferred with their counsel, Alston's attorney informed the court that defendants were "very concerned" that consecutive sentences might result from their request to charge lesser-related offenses. Thus, defendants were not "inclined" to have the court charge the lesser-related offenses. Copeland's counsel argued:
To subject the defendants to consecutive sentencing on this issue, which is essentially a . . . form of lesser included,Alston's counsel concurred, acknowledging that, while the court had not made a final determination that the sentences would be consecutive, "the specter of the possibility of consecutive sentences is still out there."
would be violative of their constitutional rights. On that basis, my client is electing not to exercise his constitutional right to waive the [g]rand [j]ury process that we were ready to do because of what the [c]ourt indicated it could do at sentencing.
. . . .
[J]ust so we're clear, he would have asked for that but for . . . the Court's ruling that he could be exposed to consecutive sentencing. Our view is that it would be treated as a lesser included at sentencing, just one sentence.
Both attorneys argued that the court's action had a "chilling effect" on defendants' ability to exercise their right to request an instruction on lesser-related offenses. The trial court concluded the charge conference by reiterating that he was "not making a ruling as to whether [the sentences] would be consecutive or not consecutive," but "merely saying that under Yarbough separate offenses call for separate sentences."
The jury was charged with the following offenses: count one, first-degree armed robbery or as a lesser-included offense, second-degree robbery; count two, second-degree unlawful possession of a weapon; count three, second-degree possession of a weapon for an unlawful purpose; and count four, third-degree receiving stolen property. After deliberating, the jury found both defendants guilty of all offenses.
Both defendants were sentenced on December 12, 2011. Prior to sentencing, the court denied defendants' respective motions for a new trial.
Copeland was sentenced to twelve years imprisonment with eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one, and, after the judge merged count three into count two, a concurrent ten-year term with a five-year period of parole ineligibility. The court also imposed a consecutive three-year term on count four.
Alston received a ten-year sentence with an eighty-five percent period of parole ineligibility pursuant to NERA on count one, and, after the court merged count three with count two, a concurrent ten-year term with a five-year mandatory minimum. Like Copeland, Alston was sentenced to a three-year consecutive term on count four.
III.
In Point I of his appeal, Copeland contends the trial court intimidated him into withdrawing his request that the jury be allowed to consider lesser-related offenses by indicating consecutive sentences for the robbery and aggravated assault were possible. Copeland argues that based on conflicts in Griffin's testimony and his impeached credibility, a reasonable jury could have concluded that a robbery did not actually occur. Rather, the jury could have concluded that the gunshot was an attempt to cause serious bodily injury to another, and therefore, convicted him of the lesser-related offense.
In response, the State argues that the court properly charged only the indicted offenses based on its finding that the record did not contain a rational basis to charge aggravated assault. The State notes that no bodily injury occurred in this case, as is necessary to support a charge of second-degree aggravated assault. Alternatively, the State asserts that the failure to charge the jury with aggravated assault was harmless error, because, if convicted of aggravated assault, Copeland "would have either served more time with a consecutive sentence or the exact same time as he was sentenced to with a concurrent sentence."
A trial court may charge the jury on a lesser-related offense upon a finding of two factors. First, the defendant must request or consent to the related offense charge. Thomas, supra, 187 N.J. at 133. Second, there must be a rational basis in the evidence to sustain the charge. Ibid.
Copeland maintains that the first prong would have been met but for the "chilling effect" of the trial court's stated intention to impose consecutive sentences if he was convicted of both aggravated assault and armed robbery. We are unpersuaded by this contention.
There is no indication in the record that the trial judge definitively declared that consecutive sentences would be imposed if defendants were convicted of both robbery and aggravated assault. While the trial judge initially indicated defendants "could be looking at consecutive sentences," his ultimate position was that he "cannot tell you as a court what I would do," and he did not "make a ruling." Thus, defendant's decision not to request the lesser-related offense charge was not the result of "intimidation" by the judge.
Upon review, the facts here do not indicate that Copeland would have been given consecutive sentences had he been convicted of both robbery and one of the aggravated assault offenses. Any robbery and aggravated assault offense involving a single victim directed toward the same criminal objective warrants a concurrent sentence. See Yarbough, supra, 100 N.J. at 648 (quoting Model Sentencing and Corrections Act (U.L.A. 1978)).
Understandably, Copeland would not want to face the prospect of a consecutive sentence. However, his counsel clearly argued to the court that consecutive sentences would not apply. Accordingly, it must be concluded that Copeland, with the advice of counsel, voluntarily withdrew his request to charge the lesser-related offenses of aggravated assault.
We also conclude that even if the request was not withdrawn, there was no rational basis in the evidence to support the lesser-related charge. The jury was presented with overwhelming evidence of Copeland's guilt beyond a reasonable doubt for armed robbery. Griffin's version of the robbery is consistent in his statements to the police following the incident and his trial testimony. Moments following the incident, Griffin told police he was approached by two men, one of whom possessed a gun that was pointed and fired at him, while the other man took his job earnings from his pocket. Shortly thereafter, the police apprehended the defendants, and Griffin identified them as the men who robbed him.
Albeit a reluctant witness for the State, at trial Griffin confirmed he "was robbed at gunpoint" by the defendants. His credibility was attacked based upon his affidavit and sworn video statement in which he claimed that Copeland was not involved with the robbery, Griffin himself was intoxicated and nothing was taken from him the night in question. Given his self-professed lack of interest in the trial and unwillingness to testify, it's apparent that Griffin's effort to paint a different picture of the robbery was due to his incarceration with the defendants in the same correctional facility. The jury realized this, placing no stock in Griffin's conflicting affidavit and video statement.
Furthermore, the trial testimony by Cirelli, an independent witness, confirmed Griffin's testimony regarding the confrontation, the firing of the gun, and identification of defendants shortly following the incident. This was consistent with the statement he gave to the police the morning of the incident, presumably when his recollection was fresh.
In short, there was no rational basis in the evidence to support the lesser-related charges of second- or fourth-degree aggravated assault. Accordingly, we conclude there is no basis to reverse Copeland's conviction of first-degree robbery because the judge did not charge the jury on the lesser-related offenses.
IV.
In Copeland's Point II, and Alston's Point I, defendants argue that the trial court committed plain error by failing to instruct the jury that they could have been guilty as accomplices to a lesser crime than that committed by their co-defendant, in accordance with the holding in State v. Bielkiewicz 267 N.J. Super. 520, 528 (App. Div. 1993). With no testimony as to who held the gun at Griffin's face, each defendant argues that the jury could have rationally concluded that he was unaware the other was armed and the robbery would be committed with a weapon. Accordingly, they contend the jury could have found one of them guilty of armed robbery, and the other guilty of second-degree robbery.
The State contends the trial court properly charged the jury on accomplice liability by informing the jury that an accomplice could be convicted of a crime even if the principal actor was convicted of a different offense or degree. The State relies upon State v. Rumblin, 166 N.J. 550, 557 (2001), for the proposition that the jury charges were appropriate, because "an accomplice may be guilty of armed robbery even though he did not personally possess or use the firearm in the course of the commission of the robbery."
Clear and correct jury charges are essential to a fair trial. State v. Brown, 138 N.J. 481, 522 (1994). A defendant is guilty as an accomplice if "[w]ith the purpose of promoting or facilitating the commission of the offense; he . . . [a]ids or agrees or attempts to aid such other person in planning or committing it." N.J.S.A. 2C:2-6(c). Therefore, "'[b]y definition[,] an accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice.'" Bielkiewicz, supra, 267 N.J. Super. at 527-28 (quoting State v. White, 98 N.J. 122, 129 (1984)).
In Bielkiewicz, this court required jury instructions on accomplice liability to include a statement that "a defendant can be found guilty as an accomplice of a lesser included offense even though the principal is found guilty of the more serious offense." State v. Norman, 151 N.J. 5, 37 (1997) (citing Bielkiewicz, supra, 267 N.J. Super. at 520). In this regard, Model Jury Charge (Criminal), "Liability for Another's Conduct: Accomplice," Charge No. Two (1995), was specifically intended to address the concerns raised in Bielkiewiecz. It provides in relevant part:
This provision of the law means that not only is the person who actually commits the criminal act responsible for it but one who is legally accountable as an accomplice is also responsible. Now this responsibility as an accomplice may be equal and the same as he/she who actually committed the crime(s) or there may be responsibility in a different degree depending on the circumstances as you may find them to be. The Court will further explain this distinction in a moment.The trial court did not include this portion of the Model Charge in its jury charge. Thus, the jury was not specifically informed that they could have found either defendant guilty as an accomplice to the lesser offense of robbery, rather than armed robbery.
. . . .
If however, you find the defendant not guilty of acting as an accomplice of X on the specific crime(s) charged, then you
should consider whether the defendant did act as an accomplice of X but with the purpose of promoting or facilitating the commission of some lesser offense(s) than the actual crime(s) charged in the indictment.
Our law recognizes that two or more person may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent on his/her own state of mind and not on anyone else's.
Guided by these legal principles, and if you have found the defendant not guilty of the specific crime(s) charges, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser charge of __________. I will now explain the elements of that offense to you. (Here the court may tell the jury what view of the facts could lead to this conclusion).
In considering whether the defendant is guilty or not guilty as an accomplice on this lesser charge, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent on his/her own state of mind and no one else's.
[Model Jury Charge (Criminal), "Liability for Another's Conduct: Accomplice," Charge No. Two (1995).
Since the defendants did not object to the charge given, we must determine whether the failure to give a Bielkiewiecz charge was "plain error," that is, did the error have the clear capacity to lead to an unjust result. R. 2:10-2. We recognize that an erroneous jury charge on a matter "'fundamental and essential or . . . substantially material' is almost always considered prejudicial". State v. Maloney, 216 N.J. 91, 104-05 (2013)(quoting State v. Simon, 79 N.J. 191, 206 (1979)). Such an error gives rise to a presumption of reversible error "that can only be excused if the error is determined to be 'harmless beyond a reasonable doubt.'" Ibid. (quoting State v. Collier, 90 N.J. 117, 123 (1982)). Here, the court's failure to provide the Model Charge in its entirety did not prejudice either defendant or bring about an unjust result.
As noted previously, the evidence establishing armed robbery as to both defendants was overwhelming. Alston was found with the gun that was fired at or near Griffin. Griffin's wages were found in Copeland's pocket. Defendants were identified in a show up minutes after the robbery by the victim and an independent witness. There was no indication the robbery was spontaneous and without the planned participation of both defendants. While there was no testimony as to which defendant pointed the gun at Griffin, given it was found in Alston's pocket, and the money was found in Copeland's pocket, the jury could have reasonably concluded that Copeland took the money while Alston fired and pointed the gun at Griffin. Even so, the determination as to who held the gun need not be considered by this court. Absent any evidence that could rationally suggest the defendant without the gun was surprised or unaware a gun would be used by his accomplice, a reasonable jury could not have found one defendant guilty of the lesser-included offense of robbery. See State v. Rue, 296 N.J. Super., 108, 116 (App. Div. 1996) (noting that Bielkiewicz charge was not required because "on evidence presented . . . jury could not have concluded that defendant had the mental state for a lesser crime" than that of the other participants).
This incident is unlike the situation in Bielkiewicz, 267 N.J. Super., supra, at 535, where the court determined it was reasonable to conclude the accomplice, who spontaneously joined in an unplanned assault initiated by the principal, may not have the purpose to cause death or serious bodily injury, when the principal shot the victim.
--------
V.
Lastly, we address the defendants' contentions that their sentences were manifestly excessive.
Copeland argues that his twelve-year term with eighty-five percent parole ineligibility for first-degree armed robbery combined with a consecutive three-year term for third-degree receiving stolen property is manifestly excessive. In sentencing Copeland, the trial court found aggravating factors one, three, six, nine and eleven, N.J.S.A. 2C:44-1(a)(1), (3), (6), (9) and (11), outweighed mitigating factor eight, N.J.S.A. 2C:44-1(b)(8). Copeland contends the trial court erred in considering aggravating factors one and eleven, and should not have given him a consecutive sentence for receiving stolen property.
Alston argues that his consecutive three-year term for third-degree receiving stolen property was manifestly excessive. In sentencing Alston, the trial court found aggravating factors one, three, nine and eleven, N.J.S.A. 2C:44-1(a)(1), (3), (9) and (11), outweighed mitigating factors eight and ten, N.J.S.A. 2C:44-1(b)(8) and (10). He contends that the trial court should not have found aggravating factor eleven, and a "correct analysis of aggravating and mitigating factors might have led the judge to reconsider the propriety of consecutive sentencing for the charge involving the stolen gun."
On appeal, a sentence should be affirmed if the sentencing court identified and balanced the aggravating and mitigating factors, and their existence is grounded in sufficient credible evidence in the record. State v. Cassady, 198 N.J. 165, 180 (2009). A sentence should only be modified if the application of the facts to the law "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-65 (1984). The reviewing court is not permitted to substitute its own judgment for that of the sentencing court but rather must determine whether, on the basis of the evidence, "no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989).
Copeland's argument that the trial court double counted the armed robbery offense by applying aggravating factor one, the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1), is unpersuasive. The factor was applied based on the trial court's assessment that "to come up to somebody in the middle of the night and put a gun to their back is pretty despicable." This addressed the circumstances of the incident - robbing a person on the street in the dark hour of 2:30 a.m. - not one of the elements of armed robbery. This does not constitute impermissible double counting. See State v. Pineda, 119 N.J. 621, 627 (1990). Notably, the trial court put "very little weight on" this factor.
Copeland and Alston correctly argue that the trial court should not have considered factor eleven because the factor is not "applicable unless the sentencing judge is balancing a noncustodial term as against a state prison sentence." State v. Dalziel 182 N.J. 494, 504 (2005). Both were convicted of first degree robbery which carries a presumption of incarceration. N.J.S.A. 2C:44-1(d). Nonetheless, consideration of aggravating factor eleven does not undermine the sentences imposed. The remaining aggravating factors outweighed the mitigating factors to support the trial court's sentences.
With respect to the consecutive sentences imposed on both defendants for receiving stolen property, we find the trial court correctly applied Yarbough, supra, 100 N.J. at 643-44. The possession of the stolen gun is a separate crime from using the gun to commit armed robbery. The offenses had independent objectives, and were committed at different times and places and against separate victims.
In sum, the trial court's sentences are in harmony with our sentencing guidelines. There was no abuse of discretion and the sentences imposed do not shock our judicial conscience. Accordingly, the sentences should not be modified.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION