Opinion
DOCKET NO. A-3816-10T1
05-03-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GEORGE T. RODGERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Elizabeth H. Arteaga, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Waugh, and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-10-00856.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Elizabeth H. Arteaga, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant George T. Rodgers appeals from his judgments of conviction for receiving stolen property and obstruction. Defendant claims that the trial court should have instructed the jury on unlawful taking of a means of conveyance, which he asserts is a lesser offense of receiving stolen property. Defendant attacks his obstruction conviction, claiming error relating to the sufficiency of the evidence, the indictment, and the jury instructions and verdict sheet. He finally asserts that his sentence was excessive. We affirm defendant's conviction and sentence for receiving stolen property. We find that errors in the jury instructions and verdict sheet require that we vacate his obstruction conviction and remand for a new trial.
I.
On July 19, 2008, a student at Princeton University left his mountain bike locked to a bicycle rack outside of his campus dormitory, using a "Kryptonite" cable combination lock. That evening, Officer Paul Krzewinski, who described himself as a "police officer" employed by Princeton University, saw a man, later identified as defendant, riding on a mountain bike. Defendant had a large black bag slung on his back. He stopped and, while still astride the mountain bike, stared intently for about fifteen seconds at another bicycle that was locked to a tree. He then rode away. The officer, finding defendant's actions suspicious, followed him in a marked patrol car.
Defendant rode the mountain bike to a metal trash can, and threw an object from his bag into the can. He then carried the mountain bike up a set of stairs. Officer Krzewinski found that the only object in the trash can was a cleanly-cut bicycle lock. He made a radio call describing defendant.
Officer Alan Lawson, employed by the Princeton University Police Department as a patrolman for twenty-six years, heard Officer Krzewinski's radio call. Officer Lawson drove in his patrol car to intercept defendant near Alexander Road. He saw defendant duck behind a garage. As Officer Lawson drove up, defendant emerged from behind the garage riding the mountain bike.
Officer Lawson, in full uniform, exited his marked patrol car, identified himself as a police officer, and ordered defendant to stop, saying "stop, police." Defendant looked at Officer Lawson, and then fled on the mountain bike. Officer Lawson chased him on foot.
Officer Mervin Arana, an officer of the Princeton Borough Police Department, saw defendant riding the mountain bike. Officer Arana stopped defendant, who was sweating profusely and out of breath. When Officer Krzewinski arrived, he arrested defendant. The officer searched defendant's bag, which contained a wrench, pliers, a package of latex gloves, a Velcro strap marked "Kryptonite," and parts of a bicycle lock. Officer Lawson retraced defendant's route, and found partially-hidden bolt cutters, which could have cut the student's bicycle lock. Detective Alvin Flanders from the Princeton University Department of Public Safety located the student, who identified the mountain bike as his, and testified that the lock looked like his lock.
The grand jury issued a two-count indictment charging defendant with fourth-degree receiving stolen property, N.J.S.A. 2C:20-7(a), and fourth-degree obstructing the administration of law or other governmental function, N.J.S.A. 2C:29-1(b). On April 29, 2010, after a two-day trial, a jury convicted defendant on both counts. On December 8, 2010, the judge sentenced defendant to eighteen months in prison on each conviction, to run concurrently, plus fees and penalties. This appeal followed.
II.
Defendant raises the following issues on appeal:
POINT I
THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE CHARGE OF OBSTRUCTING JUSTICE SHOULD HAVE BEEN GRANTEDPOINT II
THE DEFENDANT'S RIGHT TO A GRAND JURY INDICTMENT AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 8 AND 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE INCLUSION OF A THEORY OF LIABILITY IN THE JURY
INSTRUCTION FOR WHICH THE DEFENDANT HAD NOT BEEN INDICTED (NOT RAISED BELOW)POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT DIRECTED THE JURY TO FIND A FACT ESSENTIAL TO A CONVICTION FOR OBSTRUCTING JUSTICE (NOT RAISED BELOW)POINT IV
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE TO INSTRUCT JURORS ON THE LESSER-INCLUDED OFFENSE OF UNLAWFUL TAKING OF A MEANS OF CONVEYANCE (NOT RAISED BELOW)POINT V
THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS
III.
We first address defendant's challenge to his conviction for receiving stolen property. Defendant claims that his due process rights were violated when the trial judge did not sua sponte instruct the jury on the offense of unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10, as a lesser offense of receiving stolen property, N.J.S.A. 2C:20-7. Because defendant failed to request that the trial judge instruct on that crime, we review this claim for plain error. R. 2:10-2.
The Supreme Court has explained that, because of constitutional concerns, there are special restrictions on claims of plain error where a judge did not sua sponte instruct the jury on lesser offenses. State v. Thomas, 187 N.J. 119, 131-34 (2006). The severity of those restrictions depends on if the lesser offense is an "included offense" or a "related offense." "Whether an offense is an included offense of another charge requires a comparison of the statutory elements of each charge." Id. at 129. If the lesser offense "requires proof of an element not present in" the greater offense, "it is not an included offense." Id. at 135-36 & n.4. "Related offenses" are "offenses that share a common factual ground, but not a commonality in statutory elements." Id. at 132.
To show plain error for not sua sponte instructing on an "included offense," a defendant must show that the facts "'clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.'" Ibid. (brackets and citations omitted). That standard does not require the court to "'scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty,'" State v. Brent, 137 N.J. 107, 118 (1994) (citation omitted), or "'to sift through the entire record . . . to see if some combination of facts and inferences might rationally sustain' a charge[;] instead, the need for the charge must 'jump off' the proverbial page." State v. R.T., 205 N.J. 493, 509-10 (2011) (citations omitted).
Defendant cannot meet that exacting standard. He claims that the fact that he stared at the locked bicycle, presumably with the intent to take it, meant that he had taken the mountain bike "with purpose to withhold [it only] temporarily from the owner," N.J.S.A. 2C:20-10(a). We find that argument unpersuasive, especially as defendant rode away with the mountain bike, and showed no signs of returning it to its owner. In any event, the need for the charge does not jump off the page. Furthermore, as a comparison of their disparate elements shows, unlawful taking of a conveyance is not an "included offense" of receiving stolen property. State v. Richardson, 208 N.J. Super. 399, 405 (App. Div.) ("The unlawful taking of a means of transportation, or joyriding, is not a lesser included offense of receiving stolen property."), certif. denied, 105 N.J. 552 (1986). Thus, defendant cannot show plain error.
A person is guilty of unlawful taking of a conveyance "if, with purpose to withhold temporarily from the owner, he takes, operates, or exercises control over any means of conveyance, other than a motor vehicle, without consent of the owner or other person authorized to give consent." N.J.S.A. 2C:20-10(a).
A person is guilty of receiving stolen property "if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen." N.J.S.A. 2C:20-7(a).
But see State v. Alexander, 215 N.J. Super. 523, 531 (App. Div. 1987) ("We conclude, however, that N.J.S.A. 2C:20-10b is a lesser included offense to receiving a stolen motor vehicle[.]").
As set forth above, defendant contends that the facts introduced to prove his receiving stolen property offense also proved an unlawful taking of a means of conveyance offense. He is thus asserting that they are "related offenses." The Supreme Court in Thomas, however, ruled that a "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." Thomas, supra, 187 N.J. at 134. Because trial courts are not required to sua sponte instruct on related offenses, it cannot be "plain error" for them not to do so. See id. at 133-34.
Finally, defendant cites the theft consolidation statute, N.J.S.A. 2C:20-2(a). Nothing in the theft consolidation statute, however, removes a party's obligation to make a request or objection under Rule 1:7-2, or to show plain error under Rule 2:10-2. Defendant cannot show plain error here.
Defendant argues that his conviction for obstruction must be reversed for three reasons. All relate to Officer Lawson's testimony that he was employed by the "Princeton University Police Department." First, he argues that the State tried the case on a theory different than that in the indictment, because the indictment describes Officer Lawson as employed by the Princeton Borough Police Department, but he testified at trial that he was employed by Princeton University, which we note is a private institution. See N.J.R.E. 201(b). Second, defendant argues that the trial judge erred in refusing to grant his motion for judgment of acquittal because obstructing a patrolman employed by a private university cannot prevent "a public servant from lawfully performing an official function" under N.J.S.A. 2C:29-1. Third, defendant argues that the judge directed a verdict because he inaccurately described Officer Lawson as "Patrolman Alan Lawson of the Princeton Borough Police Department" when he read the verdict sheet during his instructions. Defendant did not voice any of these arguments in the trial court.
The obstruction statute, N.J.S.A. 2C:29-1, provides in pertinent part:
a. A person commits an offense if he purposely obstructs, impairs or perverts the
administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act. . . .
Contrary to defendant's premise, "'public servant' is defined broadly" enough "to encompass individuals who are authorized to perform a governmental function, irrespective of whether they hold a position of public employment." State v. Perez, 185 N.J. 204, 206 (2005).
"Public servant" means any officer or employee of government, including legislators and judges, and any person participating as juror, advisor, consultant or otherwise, in performing a governmental function, but the term does not include witnesses.It is thus well established that "[o]ne does not escape the statute's reach merely because one is not an employee of government." Perez, supra, 185 N.J. at 206 (the head clerk of privatized local agency of the Department of Motor Vehicles is a public servant); State v. Quezada, 402 N.J. Super. 277, 283-84 (App. Div. 2008) (a volunteer firefighter is a public servant); State v. Vickery, 275 N.J. Super. 648, 656 (Law Div. 1994) (a member of the Society for Prevention of Cruelty to Animals is a public servant).
[N.J.S.A. 2C:27-1(g)(emphasis added).]
Under N.J.S.A. 2C:27-1(g), "any person participating . . . in performing a governmental function" is a "public servant." Law enforcement "is clearly a 'governmental function,' as part of government's primary role is to protect the health, welfare and safety of the public." See Quezada, supra, 402 N.J. Super. at 284. Indeed, law enforcement is a "uniquely governmental" function. See Perez, supra, 185 N.J. at 207. The evidence made clear that Officer Lawson was participating in performing the governmental function of law enforcement "in some organized or officially recognized form." See Quezada, supra, 402 N.J. Super. at 284.
Further, we note that N.J.S.A. 18A:6-4.2 to -4.11 establishes a procedure for the appointment and commissioning of employees of private universities "to act as policemen for the institution." N.J.S.A. 18A:6-4.2. "Every person so appointed and commissioned shall possess all the powers of policemen and constables in criminal cases and offenses against the law anywhere in the State of New Jersey, pursuant to any limitations as may be imposed by the governing body of the institution which appointed and commissioned the person." N.J.S.A. 18A:6-4.5. Such a person may wear a badge "with the word 'police,'" N.J.S.A. 18A:6-4.6, and may carry a firearm, N.J.S.A. 2C:39-6(c)(10), -5(b), (c). These statutory powers are amply sufficient to make such an officer a "public servant." See Vickery, supra, 275 N.J. Super. at 651-53, 656. Assuming that Officer Lawson was authorized to exercise police powers under the statutory scheme, he was clearly a "public servant" for the purposes of N.J.S.A. 2C:29-1.
With that background, we address defendant's three challenges. First, the fact that the indictment refers to Officer Lawson as "Patrolman Alan Lawson, Princeton Borough Police Department" does not render the indictment invalid. "[T]he fact that the recitals in the [indictment] are erroneous affords no ground for reversal" absent some violation of a "substantial right." State v. Spriggs, 106 N.J.L. 4, 5-6 (Sup. Ct. 1929); see also State v. Hogan, 144 N.J. 216, 228-29 (1996). Here, the indictment informed defendant that he was accused of obstructing Officer Lawson's investigation in violation of N.J.S.A. 2C:29-1(b). It thus gave "adequate notice so that the accused can prepare a defense and to be sufficiently specific for the accused to avoid a subsequent prosecution for the same offenses." State v. Lopez, 276 N.J. Super. 296, 302 (App. Div.), certif. denied, 139 N.J. 289 (1994).
Defendant concedes that he failed to raise his indictment and instructional challenges below. Therefore, he must show plain error. Under Rule 2:10-2, we must disregard any error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result." "Under that standard, defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights." State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
The indictment also "allege[d] all the essential elements of the crime to avoid prosecution for an offense the grand jury did not find." Ibid. As discussed above, the "public servant" element includes both "any officer or employee of government" and "any person participating . . . in performing a governmental function," N.J.S.A. 2C:27-1(g), and was thus broad enough to encompass Officer Lawson if he was authorized under N.J.S.A. 18A:6-4.2 to -4.11. See Lopez, supra, 276 N.J. Super. at 298-99, 305-08 (finding no error where indictment charged armed robbery with "a machine gun" and the jury found the defendant used a knife, because both fell within the definition of the element "deadly weapon"); State v. Gray, 206 N.J. Super. 517, 521-22 (App. Div. 1985) (finding no error where the indictment listed sexual assault on particular "intimate parts" of the body, and the proof showed sexual assault on another intimate part, because all fell within the definition of the element "intimate parts"), certif. denied, 103 N.J. 463 (1986).
We next address defendant's argument that he was entitled to a judgment of acquittal. Officer Lawson testified that he was a "Patrolman" for the "Princeton University Police Department" for twenty-six years. Officer Lawson was in uniform, driving a marked patrol car. He was summoned to join this investigation, and pursued defendant across campus and then to Alexander Road. He identified himself as a police officer, commanding, "stop, police." In the context of a motion for judgment of acquittal, the State was entitled to the inference that he was authorized to act as a university policeman, N.J.S.A. 18A:6-4.9 to -4.11, and was thus a "public servant" for the purposes of N.J.S.A. 90:99-1. See State v. Reyes, 50 N.J. 454, 459 (1967) (a court must determine "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt"). Accordingly, the evidence was sufficient to show obstruction. See State v. Crawley, 187 N.J. 440, 443-45, 451-59 (upholding the obstruction conviction where the defendant fled after a uniformed officer in a marked patrol car said, "Police. Stop. I need to speak with you."), cert. denied, 549 U.S. 1078, 197 S. Ct. 740, 166 L. Ed. 2d 563 (2006).
Nevertheless, we are constrained to set aside defendant's obstruction conviction because of error during the instructions. The verdict sheet, as read to the jury by the judge, asked the jury to determine if defendant obstructed "Patrolman Alan Lawson of the Princeton Borough Police Department."
Defendant argues that the trial judge erred by directing the jury to find that Officer Lawson was a public servant. To the contrary, the judge was posing a "question" that the jury could "answer guilty or not guilty." The judge also instructed the jury that the State had to prove beyond a reasonable doubt "each and every essential element," including that "defendant did or attempted to prevent a public servant from lawfully performing an official function." See State v. Marshall, 193 N.J. 1, 138-39 (1991).
Nonetheless, the trial judge's factual error in referring to "Patrolman Alan Lawson of the Princeton Borough Police Department" caused plain error because the judge did not read the complete definition of "public servant" to the jury.Instead, he instructed the jury only that "[a] public servant means any officer or employee of government." Under that incomplete definition, it was legally impossible for the jury to convict defendant of obstructing Officer Lawson, because there was no evidence that he was an "officer or employee of government." The only indication given to the jury that Officer Lawson was an "officer or employee of government" was the judge's erroneous reference to "Patrolman Alan Lawson of the Princeton Borough Police Department" in the verdict sheet the judge read to the jury. Unless the jurors relied on the judge's misstatement, they could not have reached their guilty verdict, given the incomplete definition of "public servant" they received.
In particular, the judge did not instruct that a "public servant" includes "any person participating . . . in performing a governmental function." N.J.S.A. 90:97-1(g). As set forth above, that was the prong of the definition that could include Officer Lawson.
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The trial judge did instruct the jurors that "[r]egardless of what counsel said or I may have said recalling the evidence in this case, it is your recollection of the evidence that should guide you as judges of the facts." The judge also instructed the jury that "[t]he verdict form is not evidence." Normally, "[w]e presume the jury followed the court's instructions." State v. Smith, 212 N.J. 365, 409 (2012). However, that presumption "is not inviolate." State v. Bey, 112 N.J. 45, 81 (1988). Here, we cannot rely on the presumption because there is "clear proof to the contrary." State v. Tassiello, 39 N.J. 282, 296 (1963); see also State v. Montgomery, 427 N.J. Super. 403, 410 (App. Div. 2012), certif. denied, ___ N.J. ___ (March 11, 2013). It was legally impossible for the jurors to convict defendant unless they disregarded their instructions. See Penry v. Johnson, 532 U.S. 782, 799- 800, 121 S. Ct. 1910, 1922, 150 L. Ed. 2d 9, 27 (2001) (reversing conviction, despite presumption, where "it would have been both logically and ethically impossible for a juror to follow both sets of instructions"). This uniquely unfortunate situation arose from the incomplete definition of "public servant," and the judge's mischaracterization of Officer Lawson as a public employee, which was repeated on the verdict sheet that the jury took into the jury room. See State v. Nelson, 173 N.J. 417, 450-51 (2002) (refusing to presume that the jury followed its "clear oral instruction[s]" because the verdict sheet was ambiguous, and "a jury is more likely to refer to the writing directly before it to resolve any potential confusion rather than attempt to recollect an oral instruction"); see also State v. Blakney, 389 N.J. Super. 302, 349 (App. Div.) (Weissbard, J., dissenting) (the presumption that juries follow instructions "is premised on the expectation that trial judges give correct and comprehensible instructions"), rev'd on dissent, 189 N.J. 88, 93-95 (2006); Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387, 399 (App. Div. 2006).
Thus, the "'[l]egal impropriety in the charge prejudicially affect[ed] the substantial rights of the defendant'" by causing his conviction on a ground that the evidence did not support. See State v. Adams, 194 N.J. 186, 207 (2008) (citation omitted). That is "sufficiently grievous" to convince us that "the error possessed a clear capacity to bring about an unjust result." Ibid. We therefore grant a new trial on the obstruction count.
V.
Defendant claims that his eighteen-month sentence is excessive. "If a sentencing court observes the procedural protections imposed as part of the sentencing process, its exercise of sentencing discretion must be sustained unless the sentence imposed 'shocks the judicial conscience.'" State v. Cassady, 198 N.J. 165, 183-84 (2009).
Defendant's sentence does not shock "the judicial conscience." Ibid. In imposing the sentence, the trial judge pointed out that defendant had been involved with the criminal justice system since 1987, and had ten prior Superior Court convictions and four findings of guilt in Municipal Court. The judge found as aggravating factors that defendant was at risk to commit another crime, and that there was a need to deter defendant and others from committing crimes. N.J.S.A. 2C:44-1(a)(3), (9).
Defendant argues that "the need to deter" has lost its value as a meaningful aggravating factor. Defendant also asserts that he neither caused nor contemplated causing serious harm, and that the court thus should have found those mitigating factors under N.J.S.A. 2C:44-1(b)(1) and (2). We see no merit in these arguments.
We therefore affirm defendant's conviction and sentence for receiving stolen property, vacate his conviction and sentence for obstruction, and remand for a new trial on the obstruction charge.
Affirmed in part, reversed in part, and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION