STATE OF NEW JERSEY v. STEVEN REID

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1570-04T51570-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN REID,

Defendant-Appellant.

_______________________________________________________________

 

Submitted May 23, 2006 - Decided September 15, 2006

Before Judges Lefelt, Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 430-03-03.

Mark M. Cheser, attorney for appellant.

Zulima V. Farber, Attorney General for the State of New Jersey, attorney for respondent (Adrienne B. Reim, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Steven Reid, appeals from his conviction for second-degree theft in excess of $75,000. Defendant was acquitted of all of the more serious charges of murder, felony murder and kidnapping. Defendant was sentenced to the maximum term of ten years in prison, with a period of parole ineligibility for five years.

On this appeal, defendant makes the following assertions of error:

POINT I: THE SENTENCE IMPOSED ON DEFENDANT WAS UNCONSTITUTIONAL PURSUANT TO STATE V. NATALE AND BLAKELY V. WASHINGTON.

POINT II: THE SENTENCE IMPOSED WAS EXCESSIVE AND AGGRAVATING AND MITIGATING CALCULATIONS UTILIZED FACTS NOT FOUND BY THE JURY.

POINT III: THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL SINCE COUNSEL CONCEDED HIS GUILT.

POINT IV: DEFENDANT'S STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE HE WAS NOT INFORMED HE WAS A TARGET OF THE INVESTIGATION.

POINT V: THE COURT FAILED TO PROPERLY INSTRUCT THE JURY ON VALUATION. (NOT RAISED BELOW.)

Defendant's Point IV does not warrant discussion in a written opinion. See R. 2:11-3(e)(2). We merely observe that this argument was waived since it was not raised during the pretrial proceedings. See R. 3:5-7(f). See also State v. Jenkins, 221 N.J. Super. 286, 292 (App. Div. 1987), certif. denied, 113 N.J. 343 (1988) (observing "It is now well-established that constitutional claims, such as Fourth Amendment rights, may be waived unless properly and timely asserted.") Statements are not barred where they are voluntarily, knowingly and intelligently made by a defendant. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966); State v. Timmendeques, 161 N.J. 515, 613-14 (1999).

Defendant and three others were indicted by a Hudson County grand jury and charged in a fourteen-count indictment with first degree murder of Joong Ahn, N.J.S.A. 2C:11-3a(1) and (2) (count two); first degree felony murder of Joong Ahn, N.J.S.A. 2C:11-3a(3) (count three); first degree murder of Muni Ahn, N.J.S.A. 2C:11-3(a)(1) and (2) (count four); first degree felony murder of Muni Ahn, N.J.S.A. 2C:11-3(a) (count five); first degree armed robbery against Joong Ahn and/or Muni Ahn, N.J.S.A. 2C:15-1 (count six); first degree kidnapping of Joong Ahn, N.J.S.A. 2C:13-1b (count seven); first degree kidnapping of Muni Ahn, N.J.S.A. 2C:13-1b (count eight); first degree kidnapping of Jaward Mir, N.J.S.A. 2C:13-1b (count nine); first degree kidnapping of Amit Vishal, N.J.S.A. 2C:13-1b (count ten); fourth degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4) (count eleven); third degree possession of a weapon, a handgun, without a permit, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5b (count twelve); second degree possession of a weapon, a handgun, for an unlawful purpose, N.J.S.A. 2C:39-4a (count thirteen); and second degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count fourteen).

Defendant was tried separately from his co-defendants. Prior to the jury's deliberations, the charge of first degree kidnapping of Joong Ahn (count seven) was dismissed. The jury acquitted defendant on counts two through five and counts eight through fourteen. It found him guilty of second degree theft of property valued in excess of $75,000, a lesser included offense of the first degree armed robbery charged in count six.

The facts that gave rise to defendant's arrest, indictment and conviction are complex. Because of the nature of the arguments raised on appeal, however, we need not recount the facts that were adduced at trial at length. Rather, we need only set forth the following salient facts that are relevant to the matters before us on appeal. Defendant's brother, Paul Reid, and Maqbool were involved in the sale of cellular telephones and prepaid calling cards at a discount. Jawad Mir and his roommate, Amit Vishal, were involved in the same business.

With the assistance of Mir and Vishal, Paul Reid and Maqbool arranged for the sale of a large number of prepaid calling cards and cellular telephones, purportedly at a steep discount, to Joong Ahn and Muni Ahn. The buyers arrived at the location where the sale was to take place, carrying with them a substantial amount of cash that they had brought in order to consummate the deal. Because they had been involved in bringing the parties together, Mir and Vishal were also there to help finalize the transaction.

When Mir returned to the store, after stepping outside on his own for fifteen minutes, Tariq pushed him to the floor and pointed a gun at his face. While on the floor, Mir found Vishal, Joong Ahn, and Muni Ahn also there. They were all held hostage at gunpoint by Maqbool, Tariq, Paul Reid and defendant. As the Ahns, Vishal and Mir lay on their stomachs, some of them crying, defendant, Paul Reid, Tariq and Maqbool kicked and punched them.

The Ahns, Vishal and Mir were bound with duct tape at their feet, hands and mouths. The money that the buyers had brought with them for the purchase was taken. Mir and Vishal were given $10,000 each to remain silent and forced to assist in transporting Joong Ahn and Muni Ahn from the location where the transaction was to have taken place to a remote location. Mir and Vishal were later left in a motel room and were eventually permitted to leave. The two Ahns were killed, and their bodies were left in a vehicle that was set afire in a bus company's parking lot.

Paul Reid, defendant's brother, informed defendant that he had been arrested and that defendant was about to be arrested as well. Paul Reid advised defendant to come to the police station and turn himself in. Defendant complied and when he surrendered to the police, he was arrested and given his Miranda rights. During his interview with the police, defendant indicated that Tariq and Maqbool had crafted the plan to rob Joong Ahn, but he confessed that he was a willing participant.

Defendant did not testify at trial; nor did he produce any witnesses on his own behalf. Still, based upon the evidence adduced, defendant was acquitted of all charges except second degree theft, an included offense of the armed robbery charge of count six. Defendant now asserts that he was denied the effective assistance of counsel because his attorney admitted that defendant was guilty of theft.

In order to show ineffective assistance of counsel, a defendant must demonstrate acts or omissions that evidence a lack of reasonable professional competence on the part of the attorney and that such incompetence materially contributed to defendant's conviction. State v. Fritz, 105 N.J. 42, 58 (1987). We must be extremely deferential to counsel's performance and observe "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 52 (quoting Strickland v. Washington, 446 U.S. 668, 688-89, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 690, 694 (1984)).

"Moreover, any claimed errors of counsel must amount to more than mere tactical strategy." State v. Drisco, 355 N.J. Super. 283, 290 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003). Therefore, counsel may adopt a high-risk strategy of conceding defendant's guilt on a minor charge to obtain an acquittal on a greater, more serious charge. State v. Castagna, 187 N.J. 293, 316 (2006) (observing that "defense counsel's high-risk strategy of admitting [defendant's] guilt to lesser-included offenses in the hope that it would enhance [defendant's] credibility, eventually leading to a not guilty verdict of the most serious offense, was [not] prima facie evidence of ineffective assistance of counsel"). See also State v. Sheika, 337 N.J. Super. 228, 242-43 (App. Div.), certif. denied, 169 N.J. 609 (2001) (holding that defense counsel's concession to defendant's commission of a robbery to obtain an acquittal for felony murder was a reasonable strategy in light of the overwhelming evidence produced by the State that defendant participated in the robbery).

Here, defense counsel's decision to concede defendant's guilt to a theft was not prejudicial since defendant admitted to the theft in his statement to the police. The concession also allowed the jury to believe defendant was not involved in the commission of the other more serious crimes. That strategy resulted in defendant's acquittal on eleven of the twelve counts on which the jury deliberated, and the one count of which he was convicted was a lesser included offense, instead of the first degree crime with which he was charged. Therefore, we detect no errant professional judgment in the strategy employed by counsel and we perceive no prejudice to defendant.

Next, defendant asserts, for the first time on appeal, that the trial court did not correctly explain to the jury how to calculate the amount of the theft since the court did not discuss whether to aggregate the sums taken or how theories of accomplice liability would affect the jury's calculation. Where a defendant fails to object to a jury charge at trial, as occurred in this case, we may presume that defense counsel did not perceive any prejudice in such charge. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Macon, 57 N.J. 325, 337 (1971). In the absence of an objection by defendant at trial or a specific request to charge, an appellate court will not reverse on the ground of an error in the charge unless the appellant shows plain error. R. 2:10-2.

"Plain error, in the context of a jury charge, is '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). "[C]lear and correct jury charges are essential to a fair trial" and failure to provide them may constitute plain error. State v. Fortin, 178 N.J. 540, 625 (2004). When, however, the trial court recites the Model Jury Charge "and is consistent with controlling New Jersey precedent," we will not find plain error. See State v. Rodriguez, 365 N.J. Super. 38, 53-54 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).

Here, the court was well justified to rely on the Model Jury Charge and to instruct the jury to consider the entire amount of the theft if they found defendant in complicity. During the charge, after describing the elements of theft, the trial court instructed the jurors that the State had to prove the valuation of the theft beyond a reasonable doubt and then the jury would have to "indicate whether the amount of money was either $75,000 or more, or more than $500 but less than $75,000." The court then instructed that the jurors were determining "the totality of the monies that were taken" as they found them to be.

Now on appeal, defendant claims that the trial court should have instructed the jurors to value defendant's share of the stolen monies, rather than the entire amount of the robbery. "[T]he amount involved in a theft is an element of the offense required to be determined by the jury." State v. Castaldo, 271 N.J. Super. 254, 258 (App. Div. 1994); State v. Ball, 219 N.J. Super. 501, 511 (App. Div. 1987). Defendant cites the preceding cases as support for his argument, however, in neither of those cases did the judge give any instruction as to valuation.

In this case, there was no evidence that defendant's theft was separate from the entire robbery of approximately $227,000. The money stolen was taken during one single event. Therefore, the judge did not commit plain error or reversible error by failing to explain aggregation more fully or to elaborate on how the jury should take into account accomplice liability. Defendant took part in a robbery of one individual of all the money he possessed at one particular time. Consequently, he is accountable for the entire amount stolen, which was in excess of $75,000. He is not entitled to a discount because he shared the proceeds with the other thieves who worked with him.

Lastly, the State agrees that defendant is entitled to a remand for reconsideration of his sentence in light of State v. Natale, 184 N.J. 458 (2005) (Natale II). On remand, the court must state for the record the factual basis supporting findings of particular aggravating or mitigating factors affecting the sentence. Natale, supra, 184 N.J. at 488. For example, the factual basis for findings such as defendant's role in the commission of planning of the crimes of which he was acquitted or his lack of remorse should be clearly identified, if applicable. Also, the judge may not utilize aggravating factor (11), cost of doing business, in this case since defendant was convicted of a crime that carries a presumption of imprisonment, and the judge was not balancing whether or not to impose a custodial term. See State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002), aff'd, 175 N.J. 612 (2003) (holding that factor to be "[in]applicable unless the sentencing judge is balancing a non-custodial term as against a state prison sentence").

 
Remanded for reconsideration of the sentence in light of Natale II; affirmed in all other respects.

Co-defendants Tariq Maqbool (Maqbool), Paul Reid and Zaid Tariq (Tariq) were charged with thirteen counts, and Maqbool was charged with an additional count of murder against Joong Ahn (count one). None of these co-defendants is involved in this appeal.

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11

A-1570-04T5

 

September 15, 2006