Opinion
DOCKET NO. A-4047-11T4
01-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROCCO MALDONADO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Maven and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-07-1246. Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief). The opinion of the court was delivered by HOFFMAN, J.A.D.
Following a jury trial, defendant Rocco Maldonado appeals from his convictions for two counts of first-degree robbery, N.J.S.A. 2C:15-1(a), and single counts of second-degree burglary, N.J.S.A. 2C:18-2; fourth-degree possession of a stun gun, N.J.S.A. 2C:39-3(h); fourth-degree unlawful possession of an imitation firearm, N.J.S.A. 2C:39-4(e); and fourth-degree possession of a stun gun by certain persons not to possess weapons, N.J.S.A. 2C:39-7. Defendant was sentenced to an aggregate term of forty years in State prison, subject to the eighty-five percent period of parole ineligibility imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant argues various evidentiary errors and flawed jury instructions require we vacate his conviction and order a new trial. Alternatively, he maintains the sentence imposed was improper and excessive. After carefully reviewing the record and briefs submitted, we conclude that none of defendant's arguments have merit. We therefore affirm.
We derive the following facts from the record. In the early morning hours of December 24, 2008, defendant broke into the residence of R.D. (Raymond) and his fiancée, D.S. (Denise), in Bayville. At the time of the break-in, Raymond was asleep in the master bedroom and Denise was asleep on the couch. Denise testified she awoke from "a dead sleep" to find defendant leaning over her, wearing a mask and a knitted cap over his head. Defendant fastened zip ties to her right hand and put duct tape on her left hand. As defendant grabbed Denise's left hand, she heard him say, "Just cooperate, it's a raid." Observing something in defendant's hand that looked like a gun, Denise yelled, "[Raymond], get up. There's this big fat guy in the living room. I think he has a gun."
We utilize initials and pseudonyms to protect the victims' privacy.
Flex cuffs are created by intermingling two zip ties (riveted plastic pieces with a locking device) together loosely. They can be used as handcuffs which can be tightened by pulling on the straps. They are also referred to as "quick-deploying" handcuffs.
Hearing Denise's cries, Raymond testified that he got up and went down the hall, where he saw "someone standing in the center of the living room pointing a gun at me with a ski mask[, who] said, 'Just do what I say and you won't get hurt.'" Defendant then ordered Raymond to step behind the couch, where he pointed the gun at the back of Raymond's head, leaned him over the couch, and told him to put his hands behind his back so he could put flex cuffs on him. Believing the gun was real, Raymond explained that he allowed defendant to handcuff him "[b]ecause I thought he was going to shoot me in the head." Defendant then walked Raymond back around the couch and sat him near Denise.
When defendant attempted to apply the zip ties to Denise's other wrist, she refused to cooperate. According to Raymond, at that point defendant "took that gun . . . and he just whaled her right in the head with it." When Denise continued to struggle, Raymond said defendant "picked up [a] pillow, put it up to her head, put the gun to the pillow and fired." When nothing happened to Denise, she and Raymond realized the gun was not real and started to fight back.
Raymond managed to free himself from the flex cuffs and started wrestling with defendant. During the struggle, defendant's mask came off. Also during the struggle, defendant reached behind Raymond, put the gun to the back of his head and fired it twice. Raymond recalled feeling "burning on the back of [his] head" at the spot where the weapon went off.
Defendant eventually fled and ran out the front door. Raymond pursued defendant on foot, remaining fifty feet behind him to see where he was going, but not trying to overtake him. According to Raymond, he never lost sight of defendant and saw him run to a house on Mill Creek Road, and then duck down behind a truck in the driveway.
Meanwhile, Denise called 9-1-1, and Officer Warren Black of the Berkley Township Police Department was dispatched at 4:40 a.m. Raymond knew Denise was on the phone with the police as he left the house and also knew the police would have to travel down Mill Creek Road to get to his house, so he waited in the middle of the street, where he flagged down Officer Black. As soon as the officer got out of the car, Raymond pointed at the driveway where defendant was hiding.
Officer Black testified that he pulled out his weapon and ordered defendant out from behind the vehicle. Defendant came out with his hands up and was arrested. Officer Black asked defendant to put his hands on the hood of the police car and searched him.
Among other things, the search revealed a cell phone and a New Jersey Driver's license with the name Rocco Maldonado. The license listed an address for defendant in Whiting, approximately twelve miles from the location of the arrest.
After Officer Black read defendant his Miranda warnings from a card, he asked defendant what he was doing at the house. According to Officer Black, defendant responded by saying, "I'm sorry, I'm sorry, I broke in, I'm sorry."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Berkeley Township Police Officers Patrick Stesner and Clark Baranyay also responded to the 9-1-1 call. At the victims' house, they found Denise still visibly upset. The zip ties remained on her one wrist and duct tape on the other. She showed the officers the cut on the back of her head she received when defendant hit her with the gun. They also observed that Raymond still had the zip ties on his wrist, scratches on his body, and a burn mark on the back of his head.
Officer Baranyay testified that it was obvious there had been a struggle because the house was in disarray. In addition, the officers found a black ski mask on the floor, a long sleeved, XXL size jacket on the back of the couch, a "gray-colored jacket", in which there were a pair of tan gloves, and a black knit hat. The officers also saw a pillow with soot on it and red staining on one of the couch cushions. Under the Christmas tree, the officers found more zip-ties fastened together to make flex cuffs.
Officer Baranyay testified that he and the other officers who arrived at the scene conducted a "brief walk around the outside perimeter of the house," and noticed on the "front right bottom windows, there was a window pane broken out and it looked like somebody dug at the window sill from the outside." The size of the lower-portion of that window was approximately three feet long and two feet high. They also noticed one pane of a basement window was broken and had been duct taped back together. This basement window was open and unlocked upon Officer Baranyay's inspection. Raymond testified that the basement window was locked and did not have duct tape around any portion of the window on December 23 when he went to sleep.
On the ground outside the basement window, the police found a metal pry bar and a duffel bag that contained a small flashlight and additional flex cuffs, a glass cutter, and a stun gun. Raymond testified that the metal pry bar did not belong to him. The police also discovered various other items outside the window, including candles, baby wipes, and a little black case. Raymond testified that these items had been inside the house on a table.
Regarding the stun gun, Kevin Schaal, who was qualified as an expert in electronic control devices, testified that the gun was a 600,000 volt stun gun. He also testified that the weapon was operable and capable of incapacitating a person.
On the morning of December 24, Berkeley Township Police Officer Jerry Bacon responded to a phone call from a man who resided near the victim's residence, who found a black bag in his yard earlier that day. Officer Bacon retrieved the bag which contained zip ties, a deluxe voice disguiser with headphones, a crow bar, a black mag flashlight, a flat head screwdriver, black wire cutters, a black and yellow utility knife, duct tape, and a pair of black and yellow gloves.
Melissa Johns, an expert in DNA analysis, testified she was able to match a buccal swab obtained from defendant to the DNA profile she obtained from two different portions of the black face mask that was found at the victims' residence. Additionally, the DNA from the gloves found on December 24, in the black bag at the nearby residence, matched defendant's DNA. Johns also concluded that Denise was the source of the DNA profile obtained from the red staining on the couch.
On July 8, 2010 an Ocean County grand jury returned Indictment Number 10-07-1246 charging defendant with two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one and two); second-degree burglary, N.J.S.A. 2C:18-2 (count three); fourth-degree possession of a prohibited device, a stun gun, N.J.S.A. 2C:39-3(h) (count four); fourth-degree possession of a weapon, imitation firearm, for an unlawful purpose, N.J.S.A. 2C:39-4(e) (count five); and fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (count six).
On November 5, 2010, the judge heard and denied defendant's motion to dismiss the robbery counts (counts one and two) and the possession of prohibited device count (count four). After reviewing the grand jury transcript, the judge found that, in addition to assaultive conduct, defendant "acted in such a way that a reasonable person would believe that his purpose was to steal something." In particular, the judge noted defendant's statement that this was a "raid" and directing the victims to cooperate. The judge also found that there was sufficient circumstantial evidence that defendant possessed the stun gun as it was recovered outside of the victim's window, a place where defendant may have entered the victims' home.
Defendant was tried before a judge and jury over six days between September 28 and October 14, 2011. On the second day of trial, juror number two realized that the crime occurred in a neighborhood familiar to her. She further indicated that one of her basement windows had been broken around the same time period, but she was not robbed. After thorough questioning of the juror, both counsel agreed she was able to be impartial. The judge agreed and allowed her to continue her service. On October 5, 2011, the judge heard and denied defendant's motion to suppress oral statements defendant allegedly made to the police.
After the State presented its case, defense counsel moved to dismiss the robbery charges, asserting "the State has [not] made out a prima facie case with respect" to those charges. The judge denied the motion, finding that, after giving the State the benefit of all favorable testimony, a reasonable juror could find defendant guilty of all the elements of robbery. Defendant did not testify or present any witnesses.
After closing arguments, the judge gave his jury instructions. Notably, the judge did not charge aggravated assault and simple assault as lesser-included offenses of robbery. Furthermore, the judge did not define "attempted theft" when instructing the jury on the robbery charge but did define it with regard to the burglary charge.
On October 14, 2011, the jury found defendant guilty on counts one through five of the indictment. After the jurors returned their verdict, defendant pled guilty to the "certain persons" charge in count six.
On February 10, 2012, the judge sentenced defendant on count one to an extended term of forty years in custody with a mandatory eighty-five percent period of parole ineligibility pursuant to NERA. N.J.S.A. 2C:43-7.2. On count two, he was sentenced to eighteen years in custody with a mandatory eighty-five percent period of parole ineligibility. On count three, he was sentenced to nine years in custody with a mandatory eighty-five percent period of parole ineligibility. On counts five and six, he was sentenced to eighteen months in custody on each count, and count four was merged with count six. All sentences were ordered to run concurrently.
This appeal followed, with defendant raising the following issues for our consideration:
POINT I
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE ROBBERY COUNTS FROM THE INDICTMENT AND IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE
ROBBERY COUNTS AT THE END OF THE STATE'S CASE BECAUSE THE STATE FAILED TO PROVE THAT DEFENDANT COMMITTED A THEFT OR ATTEMPTED THEFT.
POINT II
THE TRIAL COURT ERRED IN FAILING TO CHARGE AGGRAVATED ASSAULT AND SIMPLE ASSAULT AS LESSER INCLUDED OFFENSES OF ROBBERY. (Not Raised Below).
POINT III
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN HE FAILED TO CHARGE THE JURY ON "ATTEMPT" BECAUSE AN ATTEMPTED THEFT FORMED THE BASIS FOR THE ROBBERY CHARGE. (Not Raised Below).
POINT IV
THE TRIAL COURT'S FAILURE TO EXCUSE JUROR NO. 2 ON THE SECOND DAY OF THE TRIAL AFTER SHE REVEALED THAT SHE LIVED IN THE SAME TOWN AS THE VICTIMS AND THAT SHE MAY HAVE HERSELF BEEN THE VICTIM OF A THWARTED BURGLARY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. (Not Raised Below).
POINT V
DEFENDANT'S SENTENCE IS EXCESSIVE.
"The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Because the issues in Points II, III, and IV are raised for the first time on appeal, our review is limited to "a search for plain error, Rule 2:10-2[.]" State v. Nesbitt, 185 N.J. 504, 516 (2005).
I.
Defendant asserts that the two counts of first-degree robbery should have been dismissed prior to trial because there was no evidence of his intent to commit a theft. Specifically, he argues "there was no evidence that defendant broke into the house with any intention other than committing an assault." We disagree.
Significantly, defendant does not contest his conviction of the burglary or the weapons charges. Defendant's sole argument is that there is insufficient evidence to support the proposition that he was in the course of committing a theft when he broke into the victims' house and assaulted them.
The standards that inform our review are well-settled.
Once the grand jury has acted, an indictment should be disturbed only on the clearest and plainest ground, and only when the indictment is manifestly deficient or palpably defective. Moreover, the decision whether to dismiss an indictment lies within the discretion of the trial court and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused.
[State v. Hogan, 144 N.J. 216, 228-29 (1996) (citations and internal quotation marks omitted).]
However, "[t]he grand jury must be presented with sufficient evidence to justify the issuance of an indictment[,]" and "[t]he absence of any evidence to support the charges would render the indictment 'palpably defective' and subject to dismissal." State v. Morrison, 188 N.J. 2, 12 (2006). "[I]f there is some evidence establishing each element of the crime to make out a prima facie case[,]" the indictment should not be dismissed. Ibid. In considering the sufficiency of the evidence,
the trial court should use a standard similar to that applicable in a motion for a judgment of acquittal at trial, R. 3:18-1. The court should evaluate whether, viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it.Applying these standards to the case at hand, defendant's pre-trial motion to dismiss the indictment based upon insufficient evidence before the grand jury and defendant's motion for acquittal to dismiss after the State's case were properly denied.
[Id. at 13 (citing State v. Reyes, 50 N.J. 454, 459 (1967)).]
Furthermore, when deciding a motion under Rule 3:18-1, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). Accordingly, the appellate standard of reviewing the sufficiency of evidence to support a criminal conviction
must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.Nevertheless, the State cannot use the right to the benefit of reasonable inferences "to reduce the State's burden of establishing the essential elements of the offense charged beyond a reasonable doubt." Ibid.; State v. Brown, 80 N.J. 587, 592 (1979).
[State v. Martinez, 97 N.J. 567, 572 (1984) (citations omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979)).]
The Supreme Court has decided that "a jury may draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference." Brown, supra, 80 N.J. at 592 (citing State v. DiRienzo, 53 N.J. 360, 376 (1969)). Accordingly, "[w]e do not reweigh the evidence considered by the jury in our review. Appellate review serves to corroborate the absence of an injustice, taking care to ensure that the jury has not committed an obvious failure of duty." State v. Josephs, 174 N.J. 44, 86 (2002).
Therefore, to survive defendant's motion to dismiss, the State was required to establish evidence demonstrating all the elements of robbery, in accordance with N.J.S.A. 2C:15-1. See State v. Farrad, 164 N.J. 247, 257 (2000) (stating that "[a] prerequisite for a robbery conviction is a theft or attempted theft"). The Criminal Code provides that a person is guilty of robbery if
in the course of committing a theft, he [or she]:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him [or her] in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree.
An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.
[N. J.S.A. 2C:15-1(a).]
Defendant argues the facts do not support a theft or an attempted theft, which makes them insufficient to sustain the robbery charge. At best he maintains the judge should have charged attempted robbery. We disagree.
The Criminal Code further provides that robbery is a second-degree offense but will be a first-degree crime "if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b).
A person can be found guilty of robbery "even if the theft is unsuccessful, if he or she (1) purposely takes a substantial step (2) to exercise unlawful control over the property of another (3) while threatening another with, or purposely placing another in fear of, immediate bodily injury." Farrad, supra, 164 N.J. at 258. Furthermore, a person can be found guilty of attempted robbery if he attempts to threaten another person with or purposely puts that individual in fear of immediate bodily injury. Id. at 259-60.
Farrad supports our conclusion that the evidence here was insufficient to warrant a charge on attempted robbery or inclusion of that offense on the verdict sheet. In Farrad, the police observed defendant outside of a fast-food restaurant, walking back and forth in front of building and looking inside. Id. at 252. The police had been investigating a number of recent robberies of such establishments. Ibid. The defendant entered the restaurant and approached the counter. Ibid. He placed his hand into his right coat pocket. Ibid. The officers apprehended the defendant and found a loaded revolver in his pocket. Ibid. The Court held that these facts could support a conviction for attempted robbery. Id. at 260.
The facts of the case under review are substantially different from those in Farrad. Defendant did more than engage in an act that constituted a substantial step towards threatening the victims or putting them in fear of immediate bodily harm. Therefore, the evidence did not provide a rational basis for charging the jury on attempted robbery or including that offense on the verdict sheet.
Indeed, the elements of robbery include actual theft or attempted theft. Id. at 257. Theft is defined as the "'unlawful taking or exercise of unlawful control over property of another with purpose to deprive him thereof[.]'" Ibid. (quoting State v. Carlos, 187 N.J. Super. 406, 412 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983)); N.J.S.A. 2C:20-3(a). Attempted theft, alternatively, is defined by "combining the foregoing definition of theft with [N. J.S.A. 2C:5-1(a)]." Ibid. A person can be found guilty of an "attempt" to commit a particular crime if:
acting with the kind of culpability otherwise required for commission of the crime, he:The "substantial step" requirement is "satisfied if a defendant acts in a way that is strongly corroborative of the 'firmness of his purpose' to carry out the crime." Farrad, supra, 164 N.J. at 258 (citation and internal quotation marks omitted).
. . . .
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
[N. J.S.A. 2C:5-1(a).]
Notably, defendant only argues the absence of the first element of robbery, theft or attempted theft, claiming the State did not prove that he had the intent to commit theft. Defendant does not contend the State failed to prove the other elements of robbery, nor does he contest the jury's finding that he was armed with a deadly weapon, thus grading the crime as a first-degree offense. We conclude that, viewing the totality of the evidence in the light most favorable to the State, a rational trier of fact could have found defendant attempted to commit a theft.
Defendant asserts that the dictionary definition of "raid" proves that he did not have the intent to commit a theft. Defendant argues that "raid" is ambiguous and thus cannot support the charge that he attempted theft. Rather, defendant argues he meant "raid" as referencing a "sudden attack." Additionally, defense counsel at trial argued to the jury that defendant meant "drug raid."
Defendant references the definition of "raid" in the Free Merriam-Webster's Online Dictionary which says:
1a: a hostile or predatory incursion
b: a surprise attack by a small force
2a: a brief foray outside one's usual sphere
b: a sudden invasion by officers of the law
c: a daring operation against a competitor
d: the recruiting of personnel (as faculty, executives, or athletes) from competing organizations
3: the act of mulcting public money
4: an attempt by professional operators to depress stock prices by concerted selling
[http://www.merriam-webster.com/dictionary/ raid (last visited Jan. 2, 2015).]
We conclude the trial judge correctly ruled that what defendant meant by "raid" was a question for the jury. In addition to defendant's statement, the record also contained evidence that several items (candles, baby wipes, and a little black case) had been removed from the victims' house before defendant assaulted the victims. Further, as the State argues, had defendant actually meant this as a "surprise attack," it does not follow that he would first tell the victim to cooperate with the attack or tell the victims to "[j]ust do what I say and you won't get hurt."
As the trial court explained:
Clearly a reasonable jury could find that the conclusion of this criminal event was not to end with the restraining of both victims, that is, that once the victims were restrained a reasonable jury could find that there was a further element to this plan, that element from the inferences particularly drawn from the statements of the defendant that this is a raid or the common parlance could be viewed as a theft and that the second part of the remaining elements to be carried out once the victims were restrained was a theft. Indeed, to believe otherwise would be to [] believe that at the conclusion of restraining both victims it was the conclusion of the criminal event. I think it's unlikely and I think a reasonable jury could find otherwise . . . .Thus, considering the totality of the evidence, while being mindful of the "sufficiency of the evidence" viewed in its entirety, and giving the State the benefit of all reasonable inferences that could be drawn from the evidence in its favor, we conclude that the trial court did not err in denying defendant's pretrial motion to dismiss the robbery charges or his motion for judgment of acquittal. See Josephs, supra, 174 N.J. at 86.
II.
Defendant contends for the first time on appeal that the trial court erred in failing to charge aggravated assault and simple assault as lesser included offenses of robbery. We disagree.
Generally, "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). However, "courts are required to instruct the jury on lesser-included offenses only if counsel requests such a charge and there is a rational basis in the record for doing so or, in the absence of a request, if the record clearly indicates a charge is warranted." State v. Denofa, 187 N.J. 24, 42 (2006).
"[W]hen the defendant fails to ask for a charge on lesser-included offenses, the court is not obliged to sift meticulously through the record in search of any combination of facts supporting a lesser-included charge." Ibid. In other words, the court is only obligated to give a lesser-included offense instruction sua sponte "if the record clearly indicates a lesser-included charge--that is, if the evidence is jumping off the page . . . ." Ibid.; see also State v. Thomas, 187 N.J. 119, 132 (2006) (finding that a "court ha[s] no duty to instruct the jury sua sponte on [an included offense charge if] the evidence [does] not clearly indicate or warrant such a charge" (alteration in original) (quoting State v. Savage, 172 N.J. 374, 401 (2002))). Finally,
in order to trigger a sua sponte requirement for a jury charge, constitutional considerations require that the offense defendant claims should have been charged must be (1) "included" in the offense actually charged and not simply related to the pattern of events that give rise to the offense charged, and (2) such that "the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense."
[Thomas, supra, 187 N.J. at 136 (quoting Jenkins, supra, 178 N.J. at 361).]
The court in Thomas directly addressed the issue of the appropriate standard for gauging "whether the trial court sua sponte must charge the jury on a related offense not requested by either the prosecution or the defense[.]" Id. at 133. In that case and in the present one, defendant made no request for the court to charge assault or aggravated assault and interposed no objection to the charge as given. Ibid. Thus, "traditional strictures of appellate review require that we view the absence of either a request or an objection through the prism of plain error." Ibid.; see R. 1:7-2 (absent plain error, "no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict . . . . A party shall only be prejudiced by the absence of an objection if there was an opportunity to object to a . . . charge.").
In determining whether an offense is a lesser included offense of another charge, the court must compare the statutory elements of each charge. Thus,
[a]n offense will be considered a lesser included offense in several circumstances. One is where the proof required to establish a greater offense is also sufficient to establish every element of a lesser offense. Another is where two offenses are the same but a lesser degree of culpability is required to establish the lesser offense.Conversely, the determination of related offenses, rather than included offenses, focuses on whether the "offense charged and the related offense share a common factual nucleus." Id. at 130; see N.J.S.A. 2C:1-8(a) ("When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.").
[Thomas, supra, 187 N.J. at 129 (alterations in original) (quoting State v. Muniz, 22 8 N.J. Super. 492, 496 (App. Div. 1988), rev'd on other grounds, 118 N.J. 319 (1990)).]
Nevertheless, in the analysis of determining whether an offense is related or included, the "starting point is 'the fundamental premise that all elements of an offense must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt[,] [and that, i]n our system of criminal justice, a defendant must have notice of the elements of the crime with which he is charged.'" Thomas, supra, 187 N.J. at 130 (alterations in original) (quoting State v. Franklin, 184 N.J. 516, 531, 534 (2005)). However, there are limited circumstances when "[a] defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense." N.J.S.A. 2C:1-8(d). An offense is included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of
culpability suffices to establish its commission.
[N. J.S.A. 2C:1-8(d).]
Providing a lesser-included offense charge is appropriate only when the requested charge satisfies the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and there is a rational basis in the evidence supporting a charge on that included offense. Thomas, supra, 187 N.J. at 131. Specifically, when a defendant does not request a lesser included charge, the court must determine "whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." Id. at 131-32 (citing State v. Brent, 137 N.J. 107, 117 (1994)).
An offense is related when the offenses share a common factual ground, not a commonality in statutory elements. Id. at 132. A trial court can instruct the jury on a related charge when two factors coalesce: "the defendant requests or consents to the related offense charge, and there is a rational basis in the evidence to sustain the related offense." Id. at 133.
Defendant relies on State v. Jordan, 240 N.J. Super. 115 (App. Div.), certif. denied, 122 N.J. 328 (1990), in support of his position. Further, defendant cites to State v. Grissom, 347 N.J. Super. 469, 479 (App. Div. 2002), in which a robbery conviction was reversed because the trial court refused to submit theft of services to the jury as a lesser included offense. In both cases, the court determined that because the jury could have determined that the defendant was not still in immediate flight after the robbery and theft, that the violent confrontation was a discrete event warranting charges of simple assault. Jordan, supra, 240 N.J. Super. at 120-21; Grissom, supra, 347 N.J. Super. at 477-78. Both cases are distinguishable from the present case because theft, not assault, was considered. Those courts found that theft is not only a lesser-included offense of robbery, but also an essential element of the offense. Jordan, supra, 240 N.J. Super. at 119. Contrary to defendants contentions, those courts did not suggest assault is a lesser-included offense of robbery.
Defendant further relies on State v. Harris, 357 N.J. Super. 532, 540 (2003), in which the facts elicited at trial showed the defendant had committed a burglary and theft. Then, at least forty-five minutes later, the defendant had a confrontation with the victims in which he threw a beer can, punched the victim, and threated to kill them. However, the issue in that case was whether the potentially discrete event of the assault and threat would result in a jury either convicting the defendant of armed robbery or an acquittal of any charge regarding the separate confrontation with the victims. Id. at 540-41. That is not the case here. Rather, in the present case, there is nothing suggesting the jury had an all or nothing decision because the jury could have found defendant guilty of first- or second-degree robbery and first- or second-degree burglary.
The New Jersey Supreme Court in State v. Sewell, 12 7 N.J. 133, 147 (1992), discussed assault as a lesser-included offense of robbery. The Court stated "the shorthand understanding that robbery equals theft plus assault is inconsistent with the clear, albeit complicated, language of the [Model Penal] Code." Ibid. In making this conclusion, the Court found that although "second-degree robbery actually equals theft plus several elements that closely resemble simple assault, if the Legislature had intended to define the injury/force element of robbery as simple assault or its equivalent, it could have said so with equal ease." Id. at 147-48. The Court clearly discussed the elements of assault and robbery and found that assault is not a lesser included offense of robbery:
N.J.S.A. 2C:12-1(a): Simple assault. A person is guilty of assault if he:
(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
(2) Negligently causes bodily injury to another with a deadly weapon; or
(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.
Simple assault is a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense.
With simple assault, injury is required to occur when force is actually applied against the victim. [N.J.S.A. 2C:12-1(a)(1)]. Simple assault may also entail putting "another in fear of imminent serious bodily injury" when no force is used. [N. J.S.A. 2C:12-1(a)(3)] (emphasis added). However, a thief commits second-degree robbery but not simple assault if he or she only threatens another with bodily injury regardless of its seriousness, [N.J.S.A. 2C:15-1(a)(2)], or uses force that entails no injury[.]Therefore, the Court found that assault is a related crime to robbery. Ibid. Further, we conclude the evidence suggests that there is no rational reason for charging a lesser-included offense because a rational juror could have found all the elements of robbery existed.
[Id. at 147.]
In conclusion "the trial court has no sua sponte obligation to charge the jury on a related offense that is not requested or consented to by the defense[,]" and, thus, we conclude the trial court was not required to provide a lesser-included offense charge of assault. Thomas, supra, 187 N.J. at 134. We, therefore, conclude no error occurred, let alone plain error.
III.
Defendant contends for the first time on appeal that the judge committed reversible error in failing to define the elements of a criminal attempt under N.J.S.A. 2C:5-1(a)(3) in the robbery instructions. We disagree.
In determining whether a jury charge is erroneous, the instruction must be read as a whole. State v. Torres, 183 N.J. 554, 564 (2005). "[P]ortions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973).
Where there is no evidence that the defendant took any object of value from a victim the defendant has injured or threatened, an instruction on attempted theft is required. State v. Gonzalez, 318 N.J. Super. 527, 529-37 (App. Div.), certif. denied, 161 N.J. 148 (1999), abrogated on other grounds by State v. Hill, 199 N.J. 545 (2009). However, in Gonzalez, there was no definition of attempt anywhere in the charge. Id. at 533.
In this matter, the judge defined "attempt," albeit elsewhere in the charge. Accordingly, we conclude there is no plain error. See State v. Smith, 322 N.J. Super. 385, 400 (App. Div.) (holding that where a correct definition of attempt appears elsewhere in the charge, there is no plain error), certif. denied, 162 N.J. 489 (1999).
The case under review is factually similar to Smith because the jury was given an instruction that included the essential components of attempted theft when the court charged the jury on burglary. In charging the jury on robbery, the judge instructed that the "State must prove beyond a reasonable doubt that the defendant was in the course of committing a theft. In this connection you were advised that an act is considered to be in the course of committing a theft if it occurs in an attempt to commit a theft[.]" The judge further instructed the jury on the definition of theft, acting with purpose and knowledge, and force. While the judge never instructed the jury on attempt specifically with regard to the robbery charge, in the judge's charge to the jury on burglary, he did define attempt: "A person is guilty of an attempt to inflict bodily injury if he or she purposely commits an act which constitutes a substantial step toward the commission of the infliction of bodily injury."
Burglary requires proof that the defendant acting "with purpose to commit an offense therein . . . enter[ed] a . . . structure" that was not "open to the public" without license or privilege to enter. N.J.S.A. 2C:18-2(a)(1).
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Like the court in Smith, we have "no doubt that the failure to define attempt [to commit theft] in the robbery charge did not prejudice defendant's rights." Ibid. Considering the jury charge in its entirety, we conclude the failure to define attempt in the robbery charge did not possess a clear capacity to bring about an unjust result. See Torres, supra, 183 N.J. at 564.
IV.
Defendant contends for the first time on appeal that the judge committed reversible error in failing to dismiss juror number two. We disagree.
The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee defendants the right to a trial by an impartial jury. U.S. Const. amends. VI, XIV; N.J. Const. art.1, ¶ 10. Indeed, "'[t]he securing and preservation of an impartial jury goes to the very essence of a fair trial.'" State v. Bey, 112 N.J. 45, 75 (1998) (alteration in original) (quoting State v. Williams, 93 N.J. 39, 60 (1983)). This "constitutional privilege includes the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." State v. R.D., 169 N.J. 551, 557 (2001) (citing Bey, supra, 112 N.J. at 75).
If there is any indication that a "juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." Id. at 557-58 (citing Bey, supra, 112 N.J. at 83-84). Where the judge determines there is a "realistic possibility that information with the capacity to prejudice defendant's right to a fair trial may have reached members of jury, it should conduct a voir dire to determine whether any exposure has occurred." Bey, supra, 112 N.J. at 86. However, not all situations require a jury to be polled, although "a court might properly choose to err on the side of caution when ruling on such motions." Id. at 89. See United States v. Lord, 565 F.2d 831, 838 (2d Cir. 1977) (holding that polling was not required if information disseminated was "clearly innocuous" or possibility of jury exposure was "remote"). Overall, this process is "prophylactic in nature," operating "to safeguard the rights of the accused and vindicate societal interests in the fair and efficient administration of the criminal justice system." Bey, supra, 112 N.J. at 89-90.
"The decision to grant a new trial based on jury taint resides in the discretion of the trial court[.]" R.D., supra, 169 N.J. at 558. However, a new trial is "not necessary in every instance where it appears an individual juror has been exposed to outside influence." Id. at 559 (citing Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78, 86 (1982) ("[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation . . . . [I]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." (alteration in original))). Rather,
the trial court is in the best position to determine whether the jury has been tainted. That determination requires the trial court to consider the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings.
[Ibid.]
Here, at the beginning of the second day of trial, juror number two brought the following issue before the judge:
JUROR NO. 2: . . . I honestly feel as if what I'm saying has nothing to do with my ability, but due to the information that came out yesterday, I felt that I needed to let you know that I lived in that town when this incident occurred.
THE COURT: Okay.
JUROR NO. 2: And I do not know the street. But when [the] prosecutor showed the map,
that little main road going down, I've been on that road. I know that road.
THE COURT: Okay.
JUROR NO. 2: Like I say, I don't think it has anything to do with it.
But the other thing that reflected, I was out of the country that year for the whole winter. And I did have a broken window in my house, in my dining room while I was away. And nothing ever came of it.
THE COURT: All right. Was anything missing from your house?
JUROR NO. 2: Not at all. It doesn't look like anyone . . . even went in.
THE COURT: Did you suspect that someone tried to enter your house[?]
JUROR NO. 2: Yes, that was what they thought. Maybe they got discouraged by a neighbor or something. I don't know any the details.
THE COURT: All right. And do you think that this event would affect your ability to be fair and impartial and evaluate the facts in this case?
JUROR NO. 2: Absolutely not.
THE COURT: All right. And you say you live in the town?
JUROR NO. 2: Um-hmm.
THE COURT: And you know where it is. Other than knowing where it is, is there anything about that particular area that you think would affect your ability to be fair and impartial in this case?
JUROR NO. 2: No. I don't' know that street at all.
THE COURT: It's my understanding you brought this to our attention in an effort to continue to comply with the instructions I provided initially.
JUROR NO. 2: Absolutely. Absolutely.
Following this exchange, defense counsel stated: "I couldn't say anything if I wanted to. She really feels like she could be fair and impartial. Information, if I had known before, it might have changed what I would have done. Now, it doesn't make a difference." The judge concluded:
I'm satisfied that she made the revelation in an effort to comply with the [c]ourt's instructions that I provided in the beginning of the case. And I'm satisfied she could be fair and impartial. She was just making sure she continued to comply with the instructions I provided in the beginning.
Defendant asserts that despite the juror's protestations that she could be fair and impartial, an unacceptable potential for bias remained, particularly since she had been the victim of a thwarted burglary around the same time as the charged offenses. Here, the juror in question merely lived in the same town where the crime occurred. She did not know defendant, any witnesses, or any facts about the case. While the juror's window was broken while she was away, nothing else occurred. We discern no mistaken exercise of discretion on the part by trial judge in his decision to keep juror number two on the panel. We therefore conclude no error occurred, let alone plain error.
V.
Defendant also challenges his sentence as excessive and argues that we should remand for re-sentencing. We will not do so because the record amply supports the imposition of the sentence and we have neither sound reasons to intervene nor any lawful grounds to adjust the sentence in any way.
Our review of sentencing decisions is governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). If the sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, we are obliged to affirm. State v. Cassady, 198 N.J. 165, 180 (2009). We are loath to second-guess a sentence that adheres to the applicable guidelines, see, e.g., State v. Bieniek, 200 N.J. 601, 608, 612 (2010), and only modify a sentence if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).
At the sentencing hearing, there was no dispute that defendant was eligible for a mandatory extended term due to his prior criminal record. Here, the trial court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (the nature and extent of defendant's prior record) and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter). The court found no mitigating factors.
The record fully supports the trial court's findings of aggravating factors three, six, and nine, and that no mitigating factors applied. We are satisfied that the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does not shock the judicial conscience. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); Roth, supra, 95 N.J. at 363-65.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION