STATE OF NEW JERSEY v. CHRISTIAN DELOACH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2301-03T42301-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTIAN DELOACH,

Defendant-Appellant.

 
 

Submitted November 30, 2005 - Decided February 7, 2006

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, 02-03-0485.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Patricia Drozd, Designated Counsel,

of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mark P. Stalford,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Christian DeLoach appeals from his conviction after a twelve-day jury trial on all but three counts of a twenty-two count indictment charging the following offenses: second-degree conspiracy to commit armed robbery, N.J.S.A.

2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (counts two, three, six, seven, eight, nine, ten, eleven, and thirteen); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts four, five, and fourteen); first-degree carjacking, N.J.S.A. 2C:15-2a(1) and/or (2) (count twelve); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts fifteen and sixteen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts seventeen and eighteen); third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and 2C:39-5b (count nineteen); third-degree aggravated assault pointing a firearm, N.J.S.A. 2C:12-1(b)(9) (count twenty); third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a) (count twenty-one); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count twenty-two). Saleem Wheeler was named as a co-defendant on all counts. However, after several days of trial, Wheeler pled guilty pursuant to a negotiated agreement.

At the conclusion of the trial, the court dismissed count twenty-two (fourth-degree aggravated assault). On June 26, 2003, the jury found defendant guilty on all remaining counts, except counts six and thirteen, two of the robbery charges. On count five, defendant was found not guilty of attempted murder, but guilty of the lesser-included charge of attempted aggravated assault by causing significant bodily injury. On count fourteen, defendant was found not guilty of attempted murder, but guilty of the lesser-included offense of attempted aggravated assault by causing serious bodily injury.

On October 24, 2003, defendant was sentenced to a total term of imprisonment of sixty years, with fifty-one years parole ineligibility. Appropriate assessments were imposed. Defendant was given credit for 565 days served in custody and 266 days of gap time credit.

On January 9, 2004, an amended judgment of conviction was filed, reflecting the breakdown of defendant's sixty-year sentence as follows: twenty years with seventeen years parole ineligibility on counts two, three, and six through eleven (armed robbery), to be served concurrent to count twelve and consecutive to counts four and eighteen; thirty years with twenty-five years, six months, and two days parole ineligibility pursuant to the No Early Release Act (NERA) on count twelve (carjacking), to be served concurrent to counts two, three, and six through eleven, and consecutive to counts four and eighteen; twenty years with seventeen years parole ineligibility on count four (attempted murder), to be served consecutive to counts twelve and eighteen, and concurrent to counts five, fifteen, and sixteen; five years with three years parole ineligibility on count five (attempted murder); ten years with eight years and six months parole ineligibility on count fifteen (aggravated assault); ten years with eight years and six months parole ineligibility on count sixteen (aggravated assault), to be served concurrent to count fifteen, and consecutive to counts two, three, and six through eleven; ten years with eight years and six months parole ineligibility on count eighteen (possession of weapon for unlawful purpose), to be served concurrent to count twenty-one, and consecutive to counts four and twelve; and five years on count twenty-one (aggravated assault on police officer), to be served concurrent to count eighteen, and consecutive to counts four and twelve. Counts one (conspiracy) and seventeen (possession of weapon for unlawful purpose) merged into counts two through eleven (armed robbery). Additionally, count fourteen (attempted murder) merged into count fifteen (aggravated assault), count nineteen (unlawful possession of weapon) merged into count eighteen (possession of weapon for unlawful purpose), and count twenty (aggravated assault pointing a firearm) merged into count twenty-one (aggravated assault on police officer).

On appeal defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL DUE TO PROSECUTORIAL MISCONDUCT, THEREBY SEVERELY PREJUDICING DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III

THE TRIAL COURT ERRED IN IMPOSING A TERM IN EXCESS OF THE STATUTORY PRESUMPTIVE TERM.

We find defendant's first issue to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We do find merit to defendant's second argument and reverse his conviction for carjacking. As a result of our disposition, there will have to be a new sentencing, making it unnecessary to address defendant's third issue.

Defendant raises the following issues in a pro se supplemental brief:

POINT I

THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS CHARGE BY INSTRUCTING THE JURY ON THE ISSUE OF CONSPIRATORIAL LIABILITY WITHOUT A RATIONAL BASIS IN THE EVIDENCE AND BY FAILING TO DISCUSS IN ITS ORIGINAL AND SUPPLEMENTAL CHARGE A VIEW AS TO HOW THEY "SHALL" APPLY THE FACTS TO THE LAW. (Not Raised Below)

POINT II

THE JURORS SHOULD HAVE BEEN INSTRUCTED THAT DEFENDANT COULD BE FOUND GUILTY OF LESSER INCLUDED OFFENSES AS AN ACCOMPLICE. (Not Raised Below)

POINT III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS FAILURE TO GIVE THE JURY A BALANCED RENDITION OF THE FACTS. (Not Raised Below)

POINT IV

THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS CHARGE TO THE JURY ON THE CRITICAL ISSUE OF IDENTIFICATION BY FAILING TO DISCUSS THE EVIDENCE AND LAW IN THE CONTEXT OF THE MATERIAL FACTS INVOLVED IN THE CASE DENIED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL. (Not Raised Below)

POINT V

DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL WERE VIOLATED BY THE TRIAL COURT'S DENIAL OF HIS MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND FOR A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

We also find defendant's pro se arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

I

On July 15, 2001, an event known as "Greek Fest" was held in Asbury Park. On that day, many people gathered to celebrate near the beach. The entire Asbury Police Department was required to work that day in anticipation of the large crowds.

At some point that evening, after dark, Clark Mathurin, who was attending Greek Fest, was in the "Super" supermarket parking lot. He was approached by several individuals wearing white t-shirts, "enough that the whole corner was swamped." Mathurin saw that the men had three guns, and one of them, a large, black automatic, was pointed at him. Reacting quickly, he removed his gold chain, which had a Gucci Long Island pendant on it, and handed it to one of the perpetrators. Mathurin heard gunshots as he was leaving the corner. He told the police that if he saw the individuals who robbed him again, he would not be able to recognize them.

Shortly after 10:30 p.m. that same evening, brothers MacDavis and Jeff Isibor were in the area of the Getty gas station in Asbury Park. While they were talking near MacDavis's car, about thirteen or fourteen young men approached them. The majority of the men were wearing white t-shirts and blue jeans. One of them pointed a gun at Jeff, which MacDavis described as a black or charcoal-colored automatic revolver with a long-nose, that was similar to and "could be" the gun marked as S-6 at trial. The men took a cell phone, a chain with a Jesus head pendant, and a jersey from MacDavis and then punched him in the stomach. They also took a chain with a similar pendant, car keys, cell phone, and money from Jeff. Both MacDavis and Jeff testified that they would not be able to identify the men who robbed them.

Azalea Figuero and her fiancé Matthew Burney were also at Greek Fest that evening. They were parked in the Super parking lot waiting to meet a friend when several young men approached their vehicle, a Yukon Denali SUV. One of the men pointed a gun at Matthew and asked for his chains. After the perpetrators appeared to walk away, Matthew got out of his vehicle with his cell phone in his hand, planning to call the police. Shortly thereafter, Azalea heard several gunshots. Matthew returned fire to protect himself and to signal that he had a weapon, and then got back into his vehicle and drove away. During the ordeal, Azalea suffered a gunshot wound in her right leg.

At trial, Matthew identified defendant as one of the men who had approached the vehicle. He did not recall defendant having a weapon but did remember defendant asking the man who took the chains for one of them. The man who took the chains then handed defendant Matthew's chain with a cross pendant. Matthew testified that he thought defendant had been wearing a white t-shirt that night.

Anthony Shaw and Shakil London were standing in front of a laundromat in Asbury Park at approximately 10:30 p.m. when a young man approached them, began talking about their chains, and called other people over. One of the men, who was wearing a white t-shirt, baseball cap, and jeans, pointed a black handgun at Shakil and told him to remove his chain and his bracelet. Shortly thereafter, Anthony and Shakil crossed the street, but the men followed them and started shooting. Shakil got into his car and remained there, but Anthony started to fight back. Anthony was shot in his shoulder and back. Shakil heard the window of his car shatter and felt pressure pushing down on his hat. When Detective David Gamble investigated Shakil's automobile later that night, he discovered a bullet hole in the rear window and Shakil's baseball hat on the floor of the vehicle with a single bullet hole in it.

Anthony testified that if he saw any of the individuals again who shot him, fought with him, or robbed Shakil, he would not recognize them. Anthony recognized defendant from that night only because he saw him in the hospital after they had both been shot. Shakil testified that he could not describe the man who robbed him and would not recognize any of the men who approached him that night.

Brothers Lamar and Robert Kelsey were standing in the Super parking lot next to Robert's blue Acura Integra at approximately 10:30 that night. Robert was standing on the driver's side of the car talking to a female, and Lamar was leaning against the car on the passenger side. Suddenly, an individual approached Lamar and grabbed the chain from his neck. A "bunch of guns" were pointed at him, and his chain, watch, and hat were taken. Lamar turned around and saw approximately three young men pointing guns at Robert. Robert's chain with a silver cross, watch, and car keys were taken. One of the perpetrators then got into Robert's automobile and starting "doing donuts" in the middle of the parking lot. Once the car stopped, gunfire ensued between the men who robbed Lamar and Robert and someone behind a black SUV.

Robert identified Exhibit S-6, a gun, as looking like the gun used to rob him and his brother. In addition, Lamar described the men who robbed him as wearing white t-shirts and blue jeans. He indicated, however, that if he saw the perpetrators again, he would not recognize them.

Jason Betances attended Greek Fest with a group of friends and was in the vicinity of the Getty gas station at approximately 10:30 p.m. talking to two females. He heard gunshots, and another female told him that people were being robbed for chains down the block. Jason became worried about his friends and ran down the street to look for them. When he failed to see his friends, he came back up the block and was approached by eight to ten men as he was passing the gas station. They pulled out a gun and snatched Jason's chain from his neck. Jason found a police officer on the corner and reported the robbery. While walking with the police officer to look for the perpetrators, he heard gunfire. Jason was shown pictures shortly after the incident but was unable to identify anyone. He indicated that if he saw the person who took his chain again, he would not be able to recognize him.

Lieutenant Brian Rubino of the Monmouth County Prosecutor's Office, Narcotics Division, and Detective Marshawn Love of the Asbury Park Police Department were on-duty during Greek Fest. At approximately 9:30 p.m., Rubino was stationed on the corner of Fourth and Main Street when he heard someone say "T.N.T. is in the house," referring to the Tactical Narcotics Team, and saw a group of six to ten individuals similarly dressed in white t-shirts walk by in a northerly direction. He recognized defendant and another individual named Allen Hite among the group. Although there were other individuals at Greek Fest also wearing white t-shirts, this group stood out to Lieutenant Rubino because they all wore very similar t-shirts and pants and were walking around together. At some point, Rubino heard a number of gunshots in the direction of Third Avenue and Main Street. When he arrived there, he ran over to Love, who had briefly detained a number of individuals at the far end of the parking lot, including defendant and Allen Hite. Rubino and Love were then summoned to another location by assisting officers, and defendant and the others who had been stopped proceeded to walk north on Main Street toward Fourth Avenue.

Detective Barry Graves was off-duty that night. At some point between approximately 9:00 and 9:45 p.m., he saw a group of ten to fifteen young men, all dressed in white shirts and jeans, coming from Memorial Way and heading east toward Main Street. Several minutes later, he heard a gunshot in the direction of Third Avenue and Main Street. Shortly thereafter, he heard several gunshots in the opposite direction toward Third and Memorial, and saw two groups engaged in a shoot-out.

Graves ran toward the supermarket in the direction of the shots, and confronted Wheeler and defendant when he reached the parking lot; he had seen defendant shooting in the direction of the first group. At that point, he showed his badge and yelled for them to drop the gun. It appeared to Graves as though defendant was trying to hand the weapon to Wheeler. He could see the gun in defendant's hand, and when defendant started to raise the gun, Graves, believing he was going to get shot, fired three rounds at defendant. Defendant fell forward, and Wheeler headed across the street into the darkness. Graves described defendant as wearing a white tank top, jeans, and Timberland boots, and Wheeler as wearing a white t-shirt, jeans, and light-colored head gear. Graves had recognized defendant's face from seeing him throughout the day, but only subsequently learned his name after the shooting. Graves described defendant's gun, which he observed again after the shooting on the ground near defendant's hand, as a large black handgun. He identified Exhibit S-6 as the gun he had seen.

Officer Phillip Montgomery of the Asbury Park Police Department was called to the area of Third Avenue and Main Street to assist in a gunfire incident at approximately 10:30 p.m. He was approached by two young black males, who reported that they had been robbed. While walking with the victims toward Third and Memorial Drive, the location of the robbery, Montgomery was approached by two more victims who had been robbed near the Getty gas station at Fourth and Main. He continued walking with all four victims, and as they got to the middle of Memorial Drive, between Third and Fourth Avenue, he heard fifteen to twenty gunshots coming from the southerly direction. Montgomery ran in the direction of the shots, and told the victims to "get down." When he reached the Super parking lot, he saw an individual with a gun, and heard Graves yell at the man to drop the gun. He then heard two shots from Graves' gun, saw the man fall to the ground and the gun drop from his hand, and heard Graves yell for him to "get the guy across the street." Officer Montgomery proceeded to tackle and handcuff that subject, whom he recognized as Wheeler. Wheeler told Montgomery that he had been shot, and asked, "Montgomery, what happened to Power?" Montgomery recognized "Power" as defendant's street name. In the process of being tackled, Wheeler had pulled a black Nokia cell phone out of his pocket. Montgomery then searched Wheeler's pockets and found a large sum of money and several bracelets, rings, and necklaces, including a chain with a Long Island pendant. Recovered from defendant's pockets at the hospital were a yellow and white metal chain with a revolver pendant and a yellow metal chain with a Jesus head pendant.

Several experts testified regarding evidence collected at the crime scene. George Chin, a forensic scientist with the State Police Forensic Science Bureau, matched wool fibers from one of the bullets to the fibers from the brim of a baseball cap recovered at the scene. Furthermore, Robin Schwartz, a forensic scientist in the State Police DNA Unit, testified that blood recovered from the gun grip of a Colt Python .357 Magnum revolver, the weapon marked as S-6, matched the blood of defendant. In addition, James R. Storey, a Detective-Sergeant in the State Police Ballistics Unit, testified that one projectile found in the Yukon SUV and four discharged shells were from the Colt revolver labeled S-6.

Defendant testified on his own behalf that he went to the Greek Fest with some friends on July 15 shortly after 5 p.m. He wore a white tank top, blue jeans, and Timberland boots, the type of clothing he typically wears every day. At some point after dark, he heard gunfire coming from the far side of Third Avenue, and the police told him to stop. A police officer put him and a couple other men down on the ground. Shortly thereafter, the police officers told defendant and the others to leave and began running toward Third Avenue in the direction of the beach where something had apparently happened. Defendant then walked toward Third Avenue in the direction of the supermarket and found himself among a crowd of people in the parking lot. Defendant noticed that one of the cars in the lot was doing donuts. Defendant then heard gunshots in the direction of Memorial Drive and saw his friend Saleem Wheeler stagger backwards after being shot. According to defendant, Wheeler asked defendant to help him and to take his gun, which defendant identified as S-6. Wheeler then handed defendant his gun and a gold chain, and defendant began to run from the scene with the gun in his right hand. Although Graves yelled for him to stop, he continued running. The next thing defendant remembered was waking up in the hospital after being shot. He testified that he did not plan to rob anyone or to commit any other crimes at Greek Fest.

II

Although defendant's argument is presented in terms of the denial of his motion for a new trial, the substance of his argument relates to the sufficiency of the evidence, that "there was reasonable doubt concerning all the charges of the Indictment. The evidence compiled against the defendant was severely insufficient." Indeed, defendant concludes his argument by asserting "that the trial court erred in not granting the defense's motion for a judgment of acquittal." Accordingly, we address defendant's sufficiency of the evidence claim under R. 3:18-1. The standard remains that set forth in State v. Reyes, 50 N.J. 454 (1967), whether viewing the State's evidence in its entirety, be it direct or circumstantial, a reasonable jury could find the defendant guilty of the offense beyond a reasonable doubt. Id. at 458-59. In making this determination, the trial judge must give the State "the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom." Id. at 459. Of course, the State's right to all reasonable inferences does not reduce its burden of proving the essential elements of each offense beyond a reasonable doubt. State v. Martinez, 97 N.J. 567, 572 (1984).

On appeal, we must apply the same standard to determine whether the trial judge should have granted the defendant's motion to acquit. State v. Moffa, 42 N.J. 258, 263 (1964). In making that determination, we do not consider any evidence adduced in defendant's case. Reyes, supra, 50 N.J. at 459.

Defendant does not contest that the crimes occurred; rather, he argues that the State failed to connect him with the charges in the indictment. Given defendant's lack of personal involvement in some of the offenses, the question is, more particularly, whether the State presented sufficient evidence from which a jury could find that defendant conspired and/or participated in the commission of the crimes beyond a reasonable doubt. As long as there was sufficient evidence to establish that defendant was a co-conspirator in a conspiracy to commit armed robbery on July 15, 2001, the jury could have found defendant liable for all of the crimes that were committed in furtherance of that conspiracy. See, e.g., State v. Phelps, 96 N.J. 500, 510 (1984); State v. Carbone, 10 N.J. 329, 340 (1952); N.J.S.A. 2C:2-6b(4).

At the outset, we do not find the mere fact that defendant was wearing a white t-shirt and jeans at Greek Fest to be indicative of his guilt. Although the victims testified that the men who robbed them were dressed alike in white t-shirts and jeans, many of the victims were also dressed in a similar fashion that evening. For example, Anthony Shaw testified that both he and his cousin Shakil London were wearing white t-shirts and blue jeans, and Jason Betances testified that he was wearing a white t-shirt, shorts, and a hat. In addition, Lamar Kelsey wore a white t-shirt, blue jeans, and a white baseball, and his brother Robert wore a white tank top and blue jeans. Thus, the fact that defendant wore a white t-shirt and the group of young men who stole chains that evening wore white t-shirts is insufficient in itself to lead to the conclusion that defendant was part of that group.

Nevertheless, despite the fact that most of the victims who testified were unable to identify defendant, or any of the perpetrators, as among the group of individuals who robbed them at Greek Fest, our review of the record leads us to conclude that the State presented sufficient evidence to warrant the majority of defendant's convictions. Blood recovered from the grip of the gun labeled S-6 at trial matched the blood of defendant. Moreover, four discharged bullets and one projectile recovered from the Yukon SUV were from the S-6 gun. Two of the victims recognized S-6 as similar to the gun used to rob them. MacDavis Isibor said the gun pointed at his brother was similar to and "could be" S-6, and Robert Kelsey identified S-6 as looking like the gun used to rob him and his brother. Additionally, and most importantly, Detective Graves identified S-6 as the gun defendant was holding and then dropped when he was shot.

Defendant is correct that the fact that he may have been holding one of the guns used to commit the robberies does not necessarily mean that he participated in the crimes or actually fired the gun. However, the State presented additional evidence that was sufficient to link defendant to the crimes. Detective Rubino had recognized defendant among a group of young men similarly dressed in white t-shirts walking around together at approximately 9:30 p.m. More significantly, one of the victims, Matthew Burney, recognized defendant as one of the men who approached his vehicle. Matthew also testified that defendant asked the man who robbed him of his chains for one of the chains. Matthew identified defendant just one day after the crime when he saw defendant's picture in the newspaper and recognized him as one of the perpetrators; he reported his identification to the police shortly thereafter. During the crime, Matthew had also recognized defendant's face as someone he had seen previously at nightclubs.

Furthermore, Detective Graves recalled seeing defendant shoot at a group of people in the Super parking lot. Graves also testified that before defendant ran with the gun, he saw defendant trying to hand the weapon to Wheeler. While the evidence against defendant could have been stronger if more victims had been able to identify him, the jury was entitled to find the witnesses who were able to identify defendant to be credible. See State v. Frisby, 174 N.J. 583, 594 (2001) (stating assessment of witness credibility is matter reserved exclusively for jury). The fact that the jury believed these witnesses, and did not find defendant's account to be credible, does not mean that the State failed to provide sufficient evidence to support the convictions.

Moreover, the State presented evidence from which it could be concluded that co-defendant Wheeler had committed at least some of the robberies and elicited testimony that linked defendant with Wheeler. Specifically, Officer Montgomery found jewelry in Wheeler's pockets, including a chain with a Long Island pendant, which Clark Mathurin, one of the robbery victims, identified as having been stolen from him that evening. It also included a Jesus head pendant identified as taken from one of the Isibors, a necklace taken from Anthony Shaw, and the cell phone belonging to Kelsey. Multiple metal chains were also recovered from defendant's pockets in the hospital, including one that matched the description of MacDavis Isabor's stolen chain. In addition, Montgomery testified that, after tackling Wheeler, Wheeler told him that he had been shot and asked him what had happened to "Power," which is defendant's street name. All of this testimony, together with the evidence previously mentioned, was sufficient circumstantial evidence upon which a jury could find that defendant was part of a conspiracy to commit armed robbery and did in fact commit armed robbery.

Once a conspiracy is established, each co-conspirator is liable for the criminal acts of all conspirators, even those acts not within the scope of the original conspiracy, as long as the acts are reasonably foreseeable consequences of the conspiracy. State v. Bridges, 133 N.J. 447, 466-67 (1993). In other words, criminal liability is imposed on a co-conspirator even for substantive crimes that are beyond the scope of the original conspiracy if those crimes are objectively foreseeable or reasonably to be anticipated in light of the obvious risks surrounding the attempts to carry out the conspiracy. Id. at 467. Here, most of the crimes defendant was convicted of in addition to conspiracy to commit armed robbery and armed

robbery -- attempted aggravated assault by causing significant bodily injury, attempted aggravated assault by causing serious bodily injury, aggravated assault, possession of a weapon for an unlawful purpose, unlawful possession of a weapon, aggravated assault pointing a firearm, and aggravated assault on a police officer -- were reasonably foreseeable crimes in light of the dangers posed by carrying out a plan to commit armed robbery. In Bridges, the Court concluded that the jury could find that a reasonably foreseeable and probable consequence of carrying out a conspiracy of intimidation by means of loaded guns would be the escalation of hostilities into the intentional firing of a gun. Id. at 469. Similarly, it is reasonably foreseeable that a conspiracy to commit armed robbery would escalate into attempted aggravated assault, aggravated assault, pointing a firearm, and aggravated assault on a police officer. Possession of a weapon for an unlawful purpose and unlawful possession of a weapon also naturally follow from a conspiracy to commit armed robbery. Thus, a jury could find defendant liable as a co-conspirator for these crimes whether or not he was the individual who actually committed them.

We reach a different conclusion, however, with respect to defendant's carjacking conviction. At the outset, we note that the State produced sufficient evidence for a jury to find that a carjacking did in fact occur. N.J.S.A. 2C:15-2 provides, in pertinent part:

A person is guilty of carjacking if in the course of committing an unlawful taking of a motor vehicle, as defined is R.S. 39:1-1, or in an attempt to commit an unlawful taking of a motor vehicle he:

. . . .

(2) threatens an occupant or person in control with, or purposely or knowingly puts an occupant or person in control of the motor vehicle in fear of, immediate bodily injury.

The intent necessary to support a carjacking conviction is the purpose to either permanently deprive the owner of the motor vehicle or to temporarily withhold the vehicle from the owner. State v. Garretson, 313 N.J. Super. 348, 360-61 (App. Div.), certif. denied, 156 N.J. 428 (1998); State v. Zadoyan, 290 N.J. Super. 280, 287 (App. Div. 1996). In State v. Jenkins, 321 N.J. Super. 124, 131-32 (App. Div.), certif. denied, 162 N.J. 197 (1999), we held that a conviction under subsection (2) of the carjacking statute requires proof that the "occupant or person in control" of the motor vehicle was located within some degree of proximity to the vehicle such that the victim was "placed within a heightened zone of danger" with relationship to that vehicle.

Here, Robert and Lamar Kelsey testified that they were standing beside Robert's vehicle when they were robbed of their jewelry at gunpoint, and Robert's car keys were taken. The perpetrator who took the keys jumped into Robert's car and temporarily exercised control of the vehicle while he spun the car in circles in the middle of the parking lot. These facts were sufficient to constitute a carjacking, at least under subsection (2) of the statute, as the victim was standing next to his car, the perpetrator intended to temporarily withhold the vehicle from the victim, and the victim was put in fear of immediate bodily injury.

While the State did present sufficient evidence for a reasonable jury to find that one of the robbers unlawfully took Robert's car keys, got into the vehicle, and proceeded to do "donuts" in the parking lot, the State presented no testimony suggesting that defendant was that individual. Lamar Kelsey testified that he could not describe the individual who got in his brother's car, other than the fact that he was shorter than Lamar, and Robert Kelsey testified that he could not describe the man at all. Accordingly, defendant can be held liable for carjacking only if the crime can be viewed as within the scope of the conspiracy to commit armed robbery, or as "reasonably foreseeable as the necessary or natural consequence[] of the conspiracy." Bridges, supra, 133 N.J. at 466-67. A co-conspirator is not liable for substantive crimes that are too far removed or too remote from the objectives of the original conspiracy. Id. at 467.

We conclude that the carjacking that occurred here was not within the scope of the conspiracy to commit armed robbery. The individual who unlawfully took the vehicle did not use it as a getaway car, which could conceivably be viewed as part of an overall plan to rob jewelry, but rather drove the car in circles in the middle of the parking lot, after which the individual got out of the car by climbing out of the window; he did not drive away with the vehicle. These actions seem more akin to a spur-of-the-moment decision by the particular individual than an act within the scope of an agreement among multiple people to steal by threat of violence.

Furthermore, taking a car temporarily in this way is not reasonably foreseeable as a natural or probable consequence of a conspiracy to commit armed robbery. Id. at 466-67. While it is reasonably foreseeable that armed robbery would escalate into the firing of a gun, the unlawful taking of a vehicle in this manner does not have the same close connection to the facilitation of an armed robbery plan. In fact, in arguing for consecutive sentences, even the prosecutor recognized that the carjacking was "done for pure fun," and was an act completely separate from the robbery conspiracy. Thus, defendant should have been found guilty of carjacking only if the State had presented sufficient evidence to establish beyond a reasonable doubt that he was the individual who actually took the car. The State did not present such proof. As a result, defendant's carjacking conviction cannot stand.

Since there must be a new sentencing, we see no reason to address defendant's various sentencing arguments. Defendant will be able to address those arguments to the judge who will be free to revisit defendant's sentence. We express no view on defendant's argument that his sentence was excessive.

Convictions affirmed except for carjacking (count twelve), which is vacated; remanded for sentencing.

 

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26

A-2301-03T4

RECORD IMPOUNDED

February 7, 2006