Opinion
DOCKET NO. A-2035-13T3
02-03-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SALAAM REEVEY, a/k/a DESMOND REEVEY, SALAAM D. REEVEY, DESMOND S. REEVEY, and SALAAM DESMOND REEVEY, Defendant-Appellant.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant, (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Barbara Drasheff, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Drasheff, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman, Leone and Whipple. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-03-0410. Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant, (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Barbara Drasheff, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Drasheff, on the brief). PER CURIAM
Defendant Salaam Reevey appeals from his convictions for robbery and aggravated assault, as well as his twenty-four-year prison sentence. For the reasons that follow, we affirm.
I.
We summarize the salient facts and procedural history from the trial record. On the night of September 4, 2010, defendant and an accomplice, Larry Austin, approached a group of five people walking toward the light rail station in Jersey City. After brandishing a pistol, Austin led three men from the group down an alleyway, where he struck two of them with the end of the pistol before shooting and killing the third. During these assaults, Austin took possessions from each of the men, including a wallet and cell phone.
As these events transpired, defendant was acting as a lookout for Austin. The two surviving victims testified that defendant "didn't say much," and did not touch them at all. Defendant was ultimately arrested and charged with murder, N.J.S.A. 2C:11-3(a)(1) or -3(a)(2) (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); three counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts three, four, and five); two counts of first-degree aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-1(b)(1) (counts six and seven); two counts of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (counts eight and nine); possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4(a) (count ten); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count eleven).
Following trial, a jury convicted defendant on counts three, four, and five of the lesser-included offense of second-degree robbery, as well as the two counts of third-degree aggravated assault. The trial judge sentenced defendant to a ten-year prison term for the first count of robbery. After merging the aggravated assault counts with the two remaining robbery counts, the judge sentenced defendant to seven-year prison terms for each remaining robbery count. The three sentences were set to run consecutively, for an aggregate sentence of twenty-four years, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following arguments:
POINT I
AS WAS THE BASIS FOR REVERSAL IN STATE v. GONZALEZ, THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT EVER DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT.
POINT II
THE JURY INSTRUCTION ON ACCOMPLICE LIABILITY WAS MANIFESTLY ERRONEOUS UNDER STATE v.
BIELKIEWCZ AND SERVED TO DENY MR. REEVEY A REALISTIC CHANCE AT A VERDICT FOR THE LESSER-INCLUDED OFFENSE OF THEFT FROM THE PERSON.We address these arguments in turn.
POINT III
MR. REEVEY'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
II.
We first address defendant's challenges to the jury charge. Defendant argues that the trial judge did not properly instruct the jury on the issues of attempt and accomplice liability.
When an issue is not raised below, we apply the plain error rule. Under Rule 2:10-2, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial . . . court." See also State v. Ross, 218 N.J. 130, 142-43 (2014) (quoting R. 2:10-2). To warrant reversal, the possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
At the onset, we acknowledge that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Jordan, 147 N.J. 409, 421 (1997) (quoting State v. Green, 86 N.J. 281, 287 (1981)). Because an individual's liberty is at stake, "[e]rroneous instructions on matters or issues that are material to the jury's deliberations are presumed to be reversible error in criminal prosecutions." Id. at 422 (citing State v. Warren, 104 N.J. 571, 579 (1986)).
The first jury instruction at issue on appeal pertains to the theft element of robbery:
As I've said, the State must prove beyond a reasonable doubt the defendant was in the course of committing a theft. In this connection, you are advised than an act is considered to be in the course of committing a theft if it occurs in an attempt to commit the theft, during the commission of the theft, or in the immediate flight after the attempt or commission.Citing to State v. Gonzalez, 318 N.J. Super. 527, 535-36 (App. Div.), certif. denied, 161 N.J. 148 (1999), abrogated on other grounds by State v. Hill, 199 N.J. 545, 565-66 (2009), defendant claims that the judge erred by failing to articulate the actus reus and mens rea of attempted theft. This argument lacks merit.
In Gonzalez, we held that a judge's failure to define attempted theft, in the greater context of a robbery charge, constituted plain error. Id. at 533. An instruction defining attempted theft was only necessary in that case, however, because the State was unable to offer any evidence that a theft actually occurred. Ibid.; see also State v. Dehart, 430 N.J. Super. 108, 119 (App. Div. 2013) (noting that a jury instruction on attempt as an element of robbery is required when there is no evidence of an actual theft).
In this case, unlike the scenarios in Gonzalez and Dehart, the trial record contains uncontroverted evidence that the victims were actually robbed. One of the victims testified that Austin took his wallet and cell phone, while the other surviving victim testified that the last thing he remembered before waking up in the hospital was Austin "getting [his] stuff out of [his] pockets." Furthermore, a detective with the Jersey City Police Department testified to recovering the deceased victim's Navy identification card in the alleyway, indicating that the victim's personal possessions had been removed from his pockets. Because there was substantial evidence that a theft had been perpetrated on each of the victims, an instruction defining attempted theft was not required to prevent an unjust result.
Defendant next argues that the judge failed to include, in the jury charge for robbery, an instruction regarding the lesser-included offense of accomplice liability theft.
When a defendant does not request a lesser-included charge, the lesser charge "must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Walton, 368 N.J. Super. 298, 307 (App. Div. 2004) (quoting State v. Savage, 172 N.J. 374, 396-97 (2002)). Here, defendant did not request a charge for the lesser-included offense of theft, thus we only look to whether the facts "clearly indicate" that the judge should have included such a charge.
The record shows that defendant stood as a lookout while Austin used force to take property from the victims. Although defendant claims that he did not know Austin had a gun, the use of force was apparent, at the very latest, when Austin brandished a gun at the victims and led them down an alleyway with the gun drawn. Nevertheless, throughout the entire incident, defendant maintained his role as a lookout, despite Austin's conspicuous use of the gun to perpetuate the robbery. As the use of force was pervasive throughout the commission of the theft, the trial record does not clearly indicate that instructions for the lesser-included offense of theft were appropriate.
Next, relying on our decision in State v. Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993), defendant asserts that the trial judge failed to instruct the jury that, as an accomplice, he could be convicted of the lesser crime of theft, even if Austin was guilty of the greater crime of robbery.
Certainly, "when an alleged accomplice is charged with a different degree offense than the principal or lesser[-]included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" State v. Maloney, 216 N.J. 91, 106 (2013) (quoting Bielkiewicz, supra, 267 N.J. Super. at 528). However, our case law only requires such an instruction "when lesser included offenses are submitted to the jury," Savage, supra, 172 N.J. at 388 (quoting Bielkiewicz, supra, 267 N.J. Super. at 528); it requires no such instruction when an accomplice is not actually charged with a lesser-included offense. Here, the lesser-included offense of theft was not submitted to the jury, nor clearly indicated by the evidence, which showed that Austin assaulted each victim during the theft. No evidence suggested defendant believed there was some way to get property from the three men other than by the threat, fear, or use of force. Therefore, the trial judge was not required to instruct the jury that defendant could still be charged with the lesser-included offense of theft. We discern no error from the jury charge on accomplice liability.
III.
We now turn to defendant's sentence, which he claims is manifestly excessive.
As the Supreme Court recently reaffirmed, a deferential standard should be applied in reviewing sentencing determinations, and the judgment of the reviewing court should not be substituted for the judgment of the sentencing court. State v. Fuentes, 217 N.J. 57, 70 (2014). The reviewing court must affirm the sentence unless "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
In this case, the sentencing judge applied aggravating factors three (risk of recidivism) and nine (deterrence). N.J.S.A. 2C:44-1(a)(3) and (9). Defendant requested, and the judge denied, application of mitigating factors seven (no criminal history), eight (unlikelihood of reoccurrence of offense), nine (unlikeliness to commit another offense), and twelve (willingness to cooperate with law enforcement). N.J.S.A. 2C:44-1(b)(7), (8), (9), and (12).
On appeal, defendant asserts that mitigating factor eleven (excessive hardship), N.J.S.A. 2C:44-1(b)(11), should have been applied, notwithstanding his failure to argue such at the sentencing hearing. He asserts that his son would face hardship as a result of his incarceration. Simply having a child, however, does not warrant application of mitigating factor eleven. See, e.g., State v. Kelly, 97 N.J. 178, 219 (1984) (rejecting the application of mitigating factor eleven because the defendant's role as the sole caretaker of her child did not constitute excessive hardship). Defendant offers no additional evidence to support his assertion that his incarceration would entail excessive hardship.
Defendant next argues that mitigating factor twelve should have been applied because he was willing to cooperate with law enforcement. However, as the sentencing judge aptly noted, defendant was only willing to cooperate with law enforcement on his own terms. The court properly declined to find defendant's statement — that Austin was the shooter — constituted "willingness of the defendant to cooperate with law enforcement authorities[,]" N.J.S.A. 2C:44-1(b)(12), when defendant refused to testify against Austin and resisted some requests for information. Defendant may have given a "lengthy statement," but he nonetheless "resisted [law enforcement officials'] efforts in some areas to find out exactly what happened." We agree with the sentencing judge that defendant's statement alone did not reflect the cooperation contemplated by the Legislature when enacting mitigating factor twelve.
Defendant finally argues that, pursuant to State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the sentencing judge should not have imposed equal seven-year sentences for his two additional robbery convictions. In Yarbough, our Supreme Court specifically noted that "successive terms for the same offense should not ordinarily be equal to the punishment for the first offense." Id. at 644. The sentencing judge acknowledged this requirement, and thus sentenced defendant to a ten-year prison term for the first robbery conviction, but only seven-year prison terms for each of the additional robbery convictions. Defendant provides no support for the assertion that the two additional robbery convictions cannot be for equal lengths. Defendant's twenty-four-year sentence was not excessive.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION