STATE OF NEW JERSEY v. BRIAN SAMUELS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0967-02T40967-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN SAMUELS,

Defendant-Appellant.

________________________________________

 

Argued September 28, 2005 - Decided

Before Judges Fall, Grall and Levy.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

Indictment No. 00-08-1368.

James K. Smith, Jr., Assistant Deputy

Public Defender, argued the cause for

appellant (Yvonne Smith Segars, Public

Defender, attorney; Mr. Smith, of counsel

and on the brief).

Susan G. Clark, Assistant Prosecutor,

argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Ms. Clark, of counsel and on the brief).

PER CURIAM

Defendant Brian Samuels appeals from a final judgment of conviction and sentence. Indicted and tried to a jury, he was convicted of conspiring with Godfried O. Mainhooh ("Rahim") to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); armed robbery, N.J.S.A. 2C:15-1 (count two); possession of a firearm with the purpose of using it unlawfully against the person of officer Pilone of the Long Branch Police Department, N.J.S.A. 2C:39-4a (count three); aggravated assault by pointing a firearm under circumstances manifesting extreme indifference to human life, N.J.S.A. 2C:12-1b(4) (count four); and resisting arrest, N.J.S.A. 2C:29-2a (count ten).

The trial court denied defendant's motion for judgment of acquittal at the close of the State's case, and denied his post-verdict motions for judgment notwithstanding the verdict and a new trial. The court granted the State's motions to sentence defendant to an extended term as a persistent offender, N.J.S.A. 2C:44-3a, and to a term of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 (as adopted by L. 1997, c. 117, 2); and merged the convictions for conspiracy and aggravated assault with the conviction for armed robbery. The judge sentenced defendant to a term of fifty years, the presumptive extended term of imprisonment for armed robbery, a NERA term of seventeen years without possibility of parole, and a concurrent four-year term for resisting arrest. N.J.S.A. 2C:44-1f; N.J.S.A. 2C:43-7.2 (as adopted by L. 1997, c. 117, 2); State v. Meekins, 180 N.J. 321, 328 (2004). The court also imposed a $100 VCCB assessment, a $150 SNSF assessment and a $30 LEOTEF penalty. This appeal followed.

On May 4, 2000, officers of the Long Branch Police Department conducted a drug-sale sting operation from a motel room in Long Branch. Officers Jeffrey Pilone and Jason Roebuck took their position in room 229. Sergeant Magarino and Officer Shea stationed themselves in the adjoining room between 229 and the stairway. Officers Bard and Dichero stood by in a marked patrol car just north of the motel; Officer Korn waited across the street from the motel in an unmarked car, and Officer Morey watched from the rooftop of a building across the street.

When the officers were in position, Pilone dialed a phone number of a suspected dealer, identified himself as "Jimmy" and asked for "Rahim." He told Rahim that they had met at Momma's House on Fourth Avenue in Asbury Park, and he ordered $1200 worth of heroin and crack cocaine. Pilone testified:

I told him I had a dope habit, a heroin habit. I told him I needed two bundles of heroin and the rest of the -- we had $1200 to spend. I needed two bundles of heroin, which is 20 decks of heroin, and the rest I wanted in crack cocaine because we were having some type of party and my friends wanted crack cocaine.

Pilone told Rahim where he could be found and asked him to deliver the drugs. Rahim agreed and told Pilone it would take one-half an hour. Minutes later, Rahim called the motel switchboard and reached room 229; he confirmed the buyer's presence. Pilone answered the call and told Rahim to "bring [him] good stuff, or good product." Rahim said, "Don't worry I'll take care of you." Rahim told Pilone to look for him to arrive in a cab.

Although none of the officers saw defendant and Mainhooh arrive at the motel, at approximately 11:00 p.m., less than an hour after the call to Rahim, Officer Morey alerted the others that two men were coming up the staircase leading to room 229. The men were defendant and Mainhooh, both residents of Neptune. As they walked along the second-floor, outdoor balcony of the motel, they appeared to be conversing and checking the numbers on the doors of the rooms.

Mainhooh knocked on the door of room 229. Pilone looked through the peephole, saw Mainhooh and inquired, "Who?" Mainhooh replied, "Rahim." Pilone repeated the question, and Mainhooh again answered, "Rahim."

Pilone alerted the members of his group that they were moving in. Roebuck opened the door, and Pilone "cut in front of him" and "rushed out," "yelling police, police, police." He was wearing a t-shirt with a police decal, a badge hung around his neck, his gun belt, handcuffs, and police radio. He explained:

I rush out. I'm yelling, "police, police, police." I see, as I am entering the doorway, I see Rahim, and off to my right I see Mr. Samuels standing off to the right.

As I'm nearing Rahim, my intent was to grab him. I look and I notice that he is, in his right hand he is holding what I believe to be .9 mm pistol, automatic weapon.

. . . .

At the time it was [pointed] at my chest, and I was already committed. I was already moving forward. There is nothing I could do. If I stopped, backed up, he would have time to shoot me.

I kind of ducked a little bit. I knocked his hand up and I pushed him back against the railing.

. . . .

He was aiming like this. As I am coming out yelling police, he had this look of surprise on his face. He started backing up. As he is backing up, the gun is coming up from my chest up towards my face. That's

when I kind of leaned over, ducked down . . . .

When Pilone had Mainhooh against the railing, defendant grabbed him, and they struggled, allowing Mainhooh to take flight. Pilone pulled defendant into room 229 where they fell to the floor and wrestled for approximately a minute and a half before the officer was able to place the defendant in handcuffs. When Pilone had defendant in custody, he told him that the officers knew he and Mainhooh were there to sell drugs. Defendant replied, "[W]e don't have any drugs; we don't have any drugs."

While Pilone struggled with and arrested defendant, Roebuck chased Mainhooh. Magarino and Shea blocked the stairway, forcing Mainhooh to the end of the balcony, where they cornered him. Mainhooh hesitated "for a second, and then . . . jumped over the balcony just as Officer Shea grabbed his sweatshirt." He got up and fled through the back parking lot of the motel.

Roebuck, Shea and Magarino ran to and down the stairway and pursued Mainhooh. Roebuck saw Mainhooh throw something in the parking lot and heard a "metallic clatter like something heavy metal hitting the pavement." Officer Roebuck and the others apprehended Mainhooh in the woods sometime later. Roebuck did not know how long it took to catch Mainhooh.

When Mainhooh was arrested he had a pager and a cell phone. After the arrest, Roebuck found a loaded .9 mm semi-automatic Astra handgun, with the hammer cocked, in the parking lot where he had heard the metal object hit the pavement.

There was no testimony about what, if any, efforts the officers took to locate drugs along the path of Mainhooh's flight or in the woods. Officer Pilone, who was not present when Mainhooh was arrested, testified that no drugs were found. Roebuck, who participated in Mainhooh's arrest, was not asked about efforts taken to find the drugs.

Although Pilone had testified that he told defendant he knew he was there to sell drugs, at trial the prosecutor asked Pilone, without objection, "And in terms of the gun that was in your face, and [the] narcotics transaction, what can you tell us about that in terms of what you realized?" Pilone responded, "They weren't there to sell me narcotics; they were there to rob me." Pilone admitted that he neither reported this crime as a robbery nor discussed robbery in his testimony before the grand jury.

Pilone had been involved in "hundreds" of narcotics arrests and had special training in narcotics. Without objection, he explained, "There [are] no certainties in narcotics. You could order drugs; they may bring your drugs or they may try to rob you, to try to get the money from you." He also admitted the "possibility" of drug dealers themselves being robbed.

Defendant testified that he knew Mainhooh "from the block" and ran into him when he was leaving a liquor store in Asbury Park at about 10:30 p.m. on the night in question. Mainhooh was ending a cell phone call and asked defendant to take a ride. They walked a distance together before they hailed a cab. According to defendant, he did not ask or know where Mainhooh was going, fell asleep in the cab and woke up when they arrived at the motel. Mainhooh seemed lost as they walked around the motel and up the stairway to room 229. Defendant explained what happened at the door:

Now I'm facing the rear watching some girl. I'm looking out this way. He knocks on the door. I heard a person say, "who?" He said, "Rahim." Then he knocks, I turn back and look and I said they don't know who [is] coming. First of all, he don't know where he's going, they don't know whose coming.

I turn back to watch the female. He knocks on the door again. He says "Who?" "Rahim." So, I turned back toward the female. The door opens up, three police come out the room . . . .

Defendant denied that Mainhooh had a gun.

Defendant raises six issues on appeal. He argues:

I. THE TRIAL COURT ERRED IN REFUSING TO

DISMISS THE CONSPIRACY AND ARMED

ROBBERY COUNTS FROM THE INDICTMENT, AND

IN REFUSING TO GRANT A JUDGMENT OF

ACQUITTAL ON THOSE COUNTS, BECAUSE

THERE WAS NO EVIDENCE WHATSOEVER TO

SUPPORT THEM.

II. THE TRIAL COURT COMMITTED PLAIN ERROR

IN FAILING TO CHARGE ATTEMPTED ROBBERY

AS A LESSER INCLUDED OFFENSE. (Not

Raised Below)

III. THE JURY CHARGES ON VICARIOUS

LIABILITY, WHICH COMINGLED CONSPIRACY

AND ACCOMPLICE LIABILITY AND FAILED TO

INSTRUCT THE JURORS THAT THEY COULD

CONVICT DEFENDANT AS AN ACCOMPLICE OF A

LESSER DEGREE CRIME THAN THE PRINCIPAL,

WERE SO LEGALLY INCORRECT AND CONFUSING

AS TO REQUIRE A NEW TRIAL. (Not Raised

Below)

IV. THE PROSECUTOR COMMITTED REVERSIBLE

ERROR IN SUMMATION WHEN SHE

MISREPRESENTED THE DEFENDANT'S

TESTIMONY AND IMPLIED THAT THE FACT

THAT DEFENDANT DID NOT HAVE ANY MONEY

ON HIM WAS EVIDENCE OF HIS PURPOSE TO

COMMIT AN ARMED ROBBERY. (Partially

Raised Below)

V. THE DEFENDANT'S CONVICTION FOR

POSSESSION OF A FIREARM FOR AN UNLAWFUL

PURPOSE MUST BE VACATED BECAUSE THE

TRIAL COURT CHARGED THE JURY ON THE

WRONG STATUTE AND OMITTED CRUCIAL

ELEMENTS OF THE CRIME. (Not Raised

Below)

VI. THE CONVICTION FOR THIRD DEGREE

RESISTING ARREST MUST BE VACATED

BECAUSE THE TRIAL COURT GAVE THE JURY

INSTRUCTION FOR DISORDERLY PERSONS

RESISTING ARREST. (Partially Raised

Below)

I.

The primary question on this appeal is the adequacy of the State's evidence of conspiracy to commit armed robbery. Evidence is sufficient to withstand a motion for judgment of acquittal when the entirety of the State's direct and circumstantial evidence, viewed most favorably and given the benefit of all reasonable inferences, permits a reasonable jury to find each element of the crime beyond a reasonable doubt. State v. Brown, 80 N.J. 587, 591 (1979); State v. Reyes, 50 N.J. 454, 459 (1967). See also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979). When the evidence and "each of the interconnected inferences [necessary to support a finding of guilt beyond a reasonable doubt] is reasonable on the evidence as a whole," judgment of acquittal is not warranted. United States v. Brodie, 403 F.3d 123, 158 (3d Cir. 2005); United States v. Applewhaite, 195 F.3d 679, 684 (3d Cir. 1999) (describing the necessary connection between evidence and inferences as "logical and convincing"); Brown, supra, 80 N.J. at 592 (inference from basic fact must be "more likely than not"). The issue is not whether the trial court or this court believes the evidence but whether "[a]ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Brown, supra, 80 N.J. at 592 (quoting Johnson v. Louisiana, 406 U.S. 356, 362, 92 S. Ct. 1620, 33 L. Ed. 2d 152 (1972)); see State v. Moffa, 42 N.J. 258, 263 (1964) (trial court and this court apply the same standard).

The analysis begins with the elements of the crime charged. The gravamen of conspiracy is the agreement to commit a specific crime. Such an agreement is central to the Legislature's dual purposes for criminalizing conspiracy -- permitting intervention to prevent completion of a planned crime and facilitating prosecutions that strike "against the special dangers of group criminal activity." State v. Hardison, 99 N.J. 379, 385 (1985). Thus, under the Code of Criminal Justice, N.J.S.A. 2C:1-1 to :98-4, "'the major basis of conspiratorial liability [is] the unequivocal evidence of a firm purpose to commit a crime'" that is provided by the agreement. State v. Roldan, 314 N.J. Super. 173, 181 (App. Div. 1998) (quoting Model Penal Code 5.03 comment 2 (Tentative Draft No. 10 (1960)). "'The agreement is an advancement of the intention'" to commit the crime. State v. Abrams, 256 N.J. Super. 390, 401 (App. Div.) (quoting State v. Carbone, 10 N.J. 329, 336-37 (1952)), certif. denied, 130 N.J. 395 (1992).

The agreement must have a specific crime as its goal. N.J.S.A. 2C:5-2 defines conspiracy as follows:

a. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

[Emphasis added.]

Because conspiracy requires both a purpose to promote or facilitate and an agreement to commit a specific crime, the essential elements of the State's case must be understood with reference to the crime that is its alleged object.

N.J.S.A. 2C:15-1 defines armed robbery as follows:

a. A person is guilty of robbery if, in the course of committing a theft, he:

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another with or purposely puts him 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.

b. Robbery is a crime of . . . the first degree if in the course of committing the theft the actor . . . is armed with, or uses or threatens the immediate use of a deadly weapon.

In order to establish the elements of conspiracy to commit armed robbery under the facts of this case, the State was required to prove that defendant, with the purpose (i.e., conscious object) of promoting or facilitating an armed robbery of the would-be-drug purchaser, made an agreement with Mainhooh that included the following terms: (1) one or both of the men would take the drug money from the would-be-buyer and keep it; (2) during that endeavor one or both would threaten the would-be-buyer with or put him in fear of immediate bodily injury; and (3) one of them would be armed with, use or threaten the immediate use of a deadly weapon during the encounter. N.J.S.A. 2C:15-1; N.J.S.A. 2C:5-2; N.J.S.A. 2C:2-2.

The conspiratorial agreement may be proven by circumstantial evidence. Carbone, supra, 10 N.J. at 341. Moreover, in evaluating that evidence, "[j]urors are not expected to ignore what is perfectly obvious, but, rather, to take full advantage of their collective experience and common sense." United States v. Spinney, 65 F.3d 231, 237 (1st Cir. 1995) (internal quotations and citations omitted).

We conclude that the testimony of Pilone and Roebuck and defendant's post-arrest statement, if believed, were adequate to permit a reasonable juror to find the essential agreement beyond a reasonable doubt. Mainhooh promised to deliver $1200 worth of drugs, but, after making a phone call to confirm the buyer's location, he appeared at the designated site for delivery without the goods and with a gun and a companion, defendant. He expected the buyer to have $1200 to pay for the drugs.

After defendant and Mainhooh examined the numbers on the motel room doors and found the correct room, Mainhooh took out and readied his gun before knocking, a fact which is reasonably inferred from the brief interval between Mainhooh's knock on the door and his pointing of the gun at Pilone's chest. If Mainhooh had drugs, his readying of the gun might be viewed as consistent with fear of the purchaser, but, without any drugs, the conduct was evidential of a plan to use it to take the buyer's money. One would not expect a buyer to surrender money for no reason, and a gun would give the buyer a reason to hand over his cash.

A reasonable juror could conclude that defendant was not only aware of Mainhooh's plan but also that he would not have been there unless he had agreed to help Mainhooh execute this plan to take the buyer's money at gun point in order to (i.e with purpose to) accomplish that goal. Mainhooh's phone call to the motel room to confirm the buyer's presence demonstrated his cautious approach to this deal. From Mainhooh's caution and planning, also evidenced by his having the gun ready when Pilone rushed from the room, one could reasonably infer that he had chosen an assistant, not a dupe, to accompany him. See Brodie, supra, 403 F.3d at 151 (considering evidence of the nature of the relationships between businessmen, and the defendant's hands-on management style in evaluating adequacy of the evidence of a conspiratorial agreement). Just as jurors are free to consider that bank robbers do not expect "clear sailing" and plan accordingly, Spinney, supra, 65 F.3d at 237, these jurors were free to consider that Mainhooh did not expect his buyer to willingly part with his drug money and had an alternate plan for persuasion.

Defendant's conduct and post-arrest statement provide additional evidence of his agreement and purpose to aid Mainhooh in taking the buyer's money at gunpoint. It is unlikely that defendant, or anyone else, would go to a motel room in a community near his home at eleven o'clock at night without a clear understanding of the purpose of the trip. This was not a visit to a friend, a quick run to the store or a late-night stop for something to eat. By helping in the search for the correct room, defendant demonstrated that he knew where he and Mainhooh were going.

Upon arrival at the room designated for the drug deal, defendant stood at Mainhooh's side while he handled the gun; that is where defendant was when Pilone rushed from the room and saw the gun pointed at his chest. Defendant's reaction to Pilone's rush against Mainhooh was swift and effective. That response is indicative of readiness to provide promised assistance and not consistent with surprise at the sudden need to come to the aid of one's companion.

Defendant himself gave additional and persuasive evidence of the "team" nature of this enterprise. When arrested, defendant not only professed knowledge of Mainhooh's conduct but linked his own conduct with Mainhooh's by asserting, "We don't have any drugs, we don't have any drugs." The accuracy of defendant's knowledge about Mainhooh's possessions was confirmed by the officers' inability to locate drugs.

The evidence in its entirety and reasonable inferences therefrom were adequate to warrant submission of the charge that defendant, with the purpose of facilitating Mainhooh's goal of taking an unsuspecting buyer's drug money at gunpoint, made an agreement with Mainhooh to provide assistance during the endeavor. Certainly, the jurors could have reached a different conclusion. But neither our view of the evidence nor the fact that it does not exclude every conceivable hypothesis except guilt is fatal to the State's case. Brown, supra, 80 N.J. at 599. The only question is whether any reasonable juror could find guilt beyond a reasonable doubt, and we conclude that a reasonable juror could have so found. Ibid.

Unquestionably, the facts in this case are not readily identifiable as similar to those reported in a prior decision. Generally, the State's proofs involve direct evidence of prior planning or evidence of cooperation at the scene of a completed crime that by its nature demonstrates the shared conspiratorial goal. See Hardison, supra, 99 N.J. at 381-82 (defendants arrived at a caf , waited until the crowd thinned out, then performed separate roles managing to herd the victims into a restroom, barricade the door, clear the cash register, take a purse and watch, and flee); State v. Cooper, 10 N.J. 532, 546-47 (1952) (defendants met, made plans, and traveled together to the scene of the robbery); State v. DeLuca, 325 N.J. Super. 376, 382 (App. Div. 1999) (wearing a ski mask and holding a firearm, one of the participants in an armed robbery got out of a car driven by the other), aff'd as modified (on other grounds), 168 N.J. 626 (2001). In this case, because the officers acted so promptly upon the defendants' arrival at room 229, the evidence of agreement is dependent upon the circumstances leading up to the defendants' joint, late-night arrival at the motel room specified as the site for a $1200 drug deal, without drugs and with a ready gun and upon the defendant's apparent preparedness to assist Mainhooh when things went awry.

Significantly, the evidence in this case is not comparable to that deemed inadequate to submit a charge of conspiracy to the jury. This is not a case in which the jury was permitted to infer an agreement from mere presence or cooperation at the scene of an unplanned crime. See State v. Madden, 61 N.J. 377, 395 (1972) (conspiracy to kill not supported by evidence that a crowd formed spontaneously in response to a violent incident and two of its members participated in a fatal assault). Nor is this a case in which the conspiracy is supported by little more than "mere association," which is clearly "inadequate" to establish conspiracy. Abrams, supra, 256 N.J. Super. at 401 (quoting Carbone, supra, 10 N.J. at 336-37).

We recognize that the completed criminal "act is neither central to conspiracy nor, in itself, evidence of the 'unlawful agreement.'" Carbone, supra, 10 N.J. at 336-37. We simply conclude that the State's direct and circumstantial evidence is adequate to permit us to find that each of the additional "interconnected inferences [necessary to support a finding of guilt] is reasonable on the evidence as a whole" and sufficient to warrant submission of the conspiracy charged for consideration by the jury. Brodie, supra, 403 F.3d at 158.

Because we conclude that the State's evidence was adequate to support the verdict beyond a reasonable doubt, we decline to consider defendant's objection to the adequacy of the evidence before the grand jury. See State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).

II.

Although defendant did not request the instruction below, he argues that the trial court committed plain error by failing to submit the charge of attempted robbery to the jury. Our review of the record convinces us that the argument lacks sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(2). We add a brief explanation for that conclusion.

Robbery is complete when the actor threatens another with or purposely puts him in fear of immediate bodily injury, "in the course of committing a theft." N.J.S.A. 2C:15-1. An act committed "in an attempt to commit theft or in the immediate flight after [an] attempt or commission" is deemed to be "in the course of committing the theft." Ibid. The trial judge charged the elements of robbery, including attempted theft and the elements of attempt. Given Mainhooh's use of the firearm against Pilone, we see no rational basis for a charge on attempted robbery and certainly none that is so clearly indicated in the evidence as to require a sua sponte charge. See State v. Robinson, 136 N.J. 476, 489 (1994); State v. Choice, 98 N.J. 295, 299 (1994).

III.

Defendant contends that the jury instruction on vicarious conspiratorial liability permitted the jurors to find him guilty of crimes committed by Mainhooh even if the jurors did not find him guilty of conspiracy to commit armed robbery. This objection to the charge was not raised below and must be considered as plain error. R. 2:10-2. Thus, reversal on this basis would be warranted only if the error was clearly capable of producing an unjust result. State v. Afanador, 151 N.J. 41, 54 (1997).

We begin with the principle that "appropriate and proper jury charges are essential to a fair trial." State v. Savage, 172 N.J. 374, 387 (2002). Where, as here, the prosecution is based on the theory that defendant is accountable for the conduct of another, the court must provide an understandable instruction on the theory of accountability. Id. at 388. "A portion of a charge alleged to be erroneous, however, 'cannot be dealt with in isolation . . . [and the instruction] should be examined as a whole to determine its overall effect.'" Id. at 387 (quoting State v. Wilbely, 63 N.J. 420, 422 (1973)).

In N.J.S.A. 2C:2-6, the Legislature included two distinct bases for criminal responsibility that are potentially implicated in a conspiracy case -- "vicarious conspiratorial liability," and "vicarious accomplice liability." See Roldan, supra, 314 N.J. Super. at 189-90. Under N.J.S.A. 2C:2-6b(4), which defines vicarious conspiratorial liability, "a conspirator is responsible for all criminal acts committed in furtherance of the conspiracy. '[T]he acts of one conspirator in furtherance of the conspiracy are deemed to be the acts of all of the co-conspirators under a mutual-agency theory.'" Id. at 188 (quoting State v. Bridges, 133 N.J. 447, 454-55 (1993)). Thus, where a conspiracy is proven, as it was in Roldan, a conspirator may be liable for a crime completed by a co-conspirator even though he has not participated, even indirectly, in its commission and did not have the purpose to commit it. 314 N.J. Super. at 188-89. The foundation for liability based upon the co-conspirator's conduct is the conspiratorial agreement, and proof of the agreement, in effect, substitutes for the proof of individual culpability and assistance as to each specific crime that is the foundation for vicarious accomplice liability pursuant to N.J.S.A. 2C:2-6c. See Roldan, supra, 314 N.J. Super. at 189.

While we agree with defendant's assertion that portions of the court's charge to this jury, read in isolation, could lead to the conclusion that a finding of vicarious conspiratorial liability does not require proof of the conspiracy, we are convinced that any potential confusion about this prerequisite for vicarious conspiratorial agreement was clearly incapable of producing an unjust result. These jurors found that the State established beyond a reasonable doubt that defendant conspired with Mainhooh. Thus, they could not have been misled by the isolated portions of the instruction that suggest that a finding of guilty on conspiracy was not essential to a finding of vicarious conspiratorial liability. The charge, as a whole, required the jurors to find that Mainhooh's additional crimes were "a reasonably foreseeable risk arising out of the criminal conduct undertaken to effectuate the conspiracy and that might occur as the necessary or natural consequence of the conspiracy."

IV.

Defendant argues that reversal is required because the prosecutor's summation included a fact not in evidence, specifically that he did not have money at the time of his arrest. Because there was no objection raised at a time when the trial court could have taken action directed at curing the error, defendant must establish plain error. R. 2:10-2; State v. Wilson, 57 N.J. 39, 51 (1970). "Moreover, defense counsel's failure to object to the remarks [at the time] indicates that in the atmosphere of the trial the defense did not believe that the prosecutor's comments were prejudicial." State v. Darrian, 255 N.J. Super. 435, 457-58 (App. Div.), certif. denied, 130 N.J. 13 (1992); Wilson, supra, 57 N.J. at 51.

The prosecutor made the comment on defendant's lack of cash when addressing defendant's testimony that he had no reason to commit this crime because he had a job. The State had not introduced evidence to rebut that testimony, and the prosecutor's argument was clearly improper and not consistent with her obligation to limit argument to inferences fairly drawn from evidence presented. State v. Chew, 150 N.J. 30, 84 (1997).

Nonetheless, we consider the impact of the improper comment in the context of the entire summation, defense counsel's decision to refrain from objecting, and the court's instructions to the jurors. State v. Frost, 158 N.J. 76, 83-84 (1999). The comment was brief and not the focus of the summation. Moreover, the court directed the jurors to avoid being influenced by the attorneys' perception of the evidence. We may presume that the jurors heeded that instruction. See State v. Manley, 54 N.J. 259, 271 (1969). Accordingly, we conclude that the prosecutor's improper remark did not lead the jurors to return a verdict they would not have otherwise reached. State v. Macon, 57 N.J. 325, 335 (1971).

V.

Defendant raises two additional objections that have significant merit. He correctly argues that that the trial judge's charge to the jury omitted essential elements of crimes charged in the indictment. These errors require reversal of defendant's conviction for possession of a firearm with an unlawful purpose, contrary to N.J.S.A. 2C:39-4a, and resisting arrest, contrary to N.J.S.A. 2C:29-2a.

In count three of the indictment, the grand jurors charged defendant with possession of a firearm with the purpose of using it unlawfully against Officer Pilone, contrary to N.J.S.A. 2C:39-4a. The trial court, however, instructed the jurors on the elements of unlawful possession of a weapon, a crime of the third degree contrary to N.J.S.A. 2C:39-4d. Defendant's conviction for the second degree crime, the elements of which were not submitted to the jury, must be vacated.

In count nine of the indictment, the grand jurors charged defendant with resisting arrest by using physical force or violence, a crime of the third degree contrary to N.J.S.A. 2C:29-2a. As the State concedes, the court improperly instructed the jurors on the elements of resisting arrest that are essential to conviction of a disorderly person offense. The charge omitted the elements of physical force essential for conviction of the third degree crime. Accordingly, that conviction must be vacated as well.

 
Affirmed in part, reversed in part and remanded for further proceedings on counts three and nine. We do not retain jurisdiction.

Defendant was also charged with possession of a firearm previously having been convicted of aggravated assault, N.J.S.A. 2C:39-7b (count six). That charge was severed for trial and dismissed on the State's motion at the sentencing. Counts five, seven, eight and nine of the indictment charged only codefendant Mainhooh. The State was unable to locate Mainhooh at the time of trial.

The judgment of conviction erroneously reflects dismissal of count three. Count six was the only count that was dismissed.

The trial court instructed the jurors on conspiracy to commit armed robbery and, as lesser included crimes of conspiracy to commit armed robbery, conspiracy to commit robbery and theft. Because the instruction and the verdict sheet do not permit us to determine which of these conspiracies the jury found, we consider whether the evidence is sufficient to support armed robbery, which encompasses the elements of the lesser included conspiracies. See State v. Harris, 141 N.J. 525, 562 (1995) (where a guilty verdict could be based on alternative theories evidence must be adequate to support all theories submitted).

The State was required to prove that defendant's conscious object included Mainhooh's conduct -- possession or use of the firearm during the robbery. See State v. Harmon, 104 N.J. 189, 201-02, 202 n.7 (1986); N.J.S.A. 2C:1-14d; N.J.S.A. 2C:2-1c; N.J.S.A. 2C:2-2b(1).

The State need not establish that Mainhooh actually agreed. Under the Code's unilateral form of conspiracy, the question is whether defendant believed that they had reached an agreement. Roldan, supra, 314 N.J. Super. at 181 (discussing the distinction between bilateral and unilateral conspiracy).

We agree with defendant's assertion that the court did not instruct the jury on accomplice liability, but where, as here, the State's theory is vicarious conspiratorial liability, the charge on accomplice liability is not essential. Id. at 189-90.

We acknowledge that defendant himself raised the issue at the time of sentencing.

(continued)

(continued)

26

A-0967-02T4

November 9, 2005