STATE OF NEW JERSEY v. NAFEESAH GOLDSMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3405-03T43905-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant.

v.

NAFEESAH GOLDSMITH,

Defendant-Appellant/

Cross-Respondent.

________________________________________________________________

 

Submitted October 19, 2005 - Decided January 24, 2006

Before Judges Stern and Parker.

On appeal from the Superior Court of New Jersey,

Law Division, Ocean County, Indictment Number

00-04-0564.

Yvonne Smith Segars, Public Defender, attorney

for appellant/cross-respondent (Susan Brody,

Assistant Deputy Public Defender, of counsel

and on the brief).

Peter C. Harvey, Attorney General of New Jersey,

attorney for respondent/cross-appellant (Johanna

Barba Jones, Deputy Attorney General, of counsel

and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Nafeesah Goldsmith appeals from a judgment of conviction entered on January 16, 2004 after a jury found her guilty of two counts of first degree kidnapping, N.J.S.A. 2C:13-1b; first degree robbery, N.J.S.A. 2C:15-1; fourth degree evidence tampering, N.J.S.A. 2C:28-6(1); and third degree hindering prosecution, N.J.S.A. 2C:29-3b. On the first degree robbery charge (Count Three), defendant was sentenced to a term of fifteen years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. She was sentenced to concurrent terms on the remaining counts. The State cross-appeals from the trial judge's failure to impose a NERA 85% parole ineligibility term on defendant's two first degree kidnapping convictions.

The events leading to these charges began on February 8, 2000, when defendant and her boyfriend, Justin Overton, along with their mutual friend, Marian Gonzalez, rented a motel room in Lakehurst. Only Overton and Gonzalez went to the front desk to check in. The three were "just hanging out. . . . smoking a little weed, drinking, just catching up on old times."

During the night, they made plans to rob the Patel family, who owned and operated the motel. Overton left the two women in the motel room that night and returned the next morning with a backpack containing two knives, a box of surgical gloves and several roles of packing tape. Gonzalez went to the front desk to rent the room for another day and paid Neetu Patel for the extra day. About five hours later, however, the two women returned to the front desk asking for a refund, claiming the phone did not work in the room. Neetu refused to refund the money but assigned them a different room. Gonzalez next returned to request another room away from the highway, facing a secluded, wooded area.

Later in the afternoon, Overton called the front desk to complain that the toilet was not working. When Neetu sent her brother-in-law, Ishvar Patel, to the room with a plunger, Overton attacked him, threatened him with a knife and pushed him to the floor, causing Ishvar to hit his head on the table. The three of them then taped Ishvar's hands, feet and mouth, dumped him in the bathtub, put a pillowcase over his head and turned on the cold water shower.

Shortly thereafter, Neetu went looking for Ishvar and she, too, was attacked when she entered the darkened room. Defendant grabbed her arm and shoved her onto the bed. When Neetu began to scream, the three assailants told her to be quiet and Overton waived a knife in front of her face, telling her to "lay back" on the bed. Neetu begged for her life and told Overton not to kill her because she had two small children. Defendant put her hand over Neetu's mouth to silence her. Overton and Gonzalez taped Neetu's arms and legs while defendant held her down by the shoulders.

Defendant took Neetu's keys from her pocket and Overton instructed defendant to go to the front office and take whatever money was in the cash register and the registration card for their room. Defendant did as Overton instructed and took $265 and the card from the front office. The three of them then packed up their belongings, along with certain incriminating evidence, including bloody towels, and left the motel.

After defendant and her two friends left the motel, Neetu managed to get the tape off her hands and legs and tried to call the police from the room, but the phone wires were cut. She found Ishvar in the bathtub, helped him out and went back to the office where she called the police.

The police broadcast Neetu's description of a heavy-set black man and two light-skinned black women. An officer passing the nearby Burger King noticed three people fitting that description and called for backup. When the backup officers arrived, the three were detained and Neetu was brought to the scene to identify them. While Neetu was sitting in the back of the police car, the officer put his high beams on the three and Neetu, looking through the windshield, said, "That's them." Neetu was between twenty and twenty-five feet from the trio when she identified them.

When he was arrested, Overton had blood stains on his clothes, a set of motel keys, the cash register key and a pair of latex gloves in the pockets of his pants. Gonzalez had blood stains on her pants. When defendant was arrested, she had $129 concealed on her person. At police headquarters, a $5 bill was found floating in the toilet after defendant used it, leading to the inference she had flushed some of the stolen money. Defendant initially identified herself as Jowharah Evans, but later acknowledged that her name was Nafeesah Goldsmith.

Overton entered a guilty plea and the State recommended a sentence not greater than fifteen years subject to 85% parole ineligibility on two counts of kidnapping and one count of armed robbery. His plea agreement did not require him to testify at trial. When he testified at defendant's trial, however, he acknowledged that he hoped his cooperation would have a beneficial effect on his sentence. Based at least in part on this cooperation, Overton was ultimately sentenced to twelve years with 85% parole ineligibility.

Gonzalez and defendant were tried together. Gonzalez was convicted of two counts of first degree kidnapping, one count of first degree robbery, and third degree possession of a weapon for an unlawful purpose. She was sentenced to an aggregate term of fifteen years subject to 85% parole ineligibility.

At trial, defendant called only one witness on her behalf, Detective Keith Klementz. Through Klementz, defendant established that when the three were arrested, Overton's and Gonzalez's clothes were blood-stained but hers were clean.

In this appeal, through counsel, defendant argues:

POINT I

BECAUSE THE JURY WAS NOT PROPERLY INSTRUCTED THAT AN ACCOMPLICE MAY INTEND TO COMMIT A LOWER-DEGREE OFFENSE THAN THE MAIN ACTOR, AND BECAUSE THERE WAS NO EVIDENCE THAT DEFENDANT INTENDED FOR A WEAPON TO BE USED DURING THE ROBBERY, HER CONVICTION OF FIRST-DEGREE ROBBERY MUST BE AMENDED TO SECOND-DEGREE ROBBERY. (Not Raised Below.)

POINT II

THE DISPARITY BETWEEN THE 12-YEAR SENTENCE IMPOSED ON JUSTIN OVERTON AND THE 15-YEAR SENTENCE IMPOSED ON DEFENDANT RENDERS DEFENDANT'S SENTENCE MANIFESTLY UNJUST AND UNDULY PUNITIVE, THUS REQUIRING REVERSAL AND A REMAND FOR RESENTENCING. (Not Raised Below).

In a supplemental pro-se brief, defendant argues:

A. Ineffective assistance of trial counsel, violating the Petitioner's right to effective assistance of counsel as guaranteed by the Sixth Amendment of the U.S. Constitution, as well as the corresponding New Jersey Constitution provision, specified as:

1. Defense counsel was constitutionally ineffective in failing to request jury instructions for assault and its gradations (simple, aggravated, and agg. with a deadly weapon);

2. Defense counsel was constitutionally ineffective in failing to advise the petitioner of the advantages of testifying in her own defense at trial and by advising petitioner not to testify at trial;

3. Defense counsel was constitutionally ineffective in advising the petitioner not to accept the State's plea bargain offer prior to trial.

B. Petitioner's sentence was illegal and imposed in violation of her right to a jury trial under the Sixth Amendment of the U.S. Constitution, and right to Due Process of Law as guaranteed by the Sixth and Fourteenth Amendments of the U.S. Constitution, as well as the corresponding New Jersey Constitution provisions and prevailing decisional law.

2. The sentence imposed upon defendant was illegal as pertaining to the No Early Release Act application because the trial judge, not the jury, found the statutory predicates to apply and used a preponderance of the evidence standard rather than the beyond a reasonable doubt standard; and the sentence imposed on defendant was unlawfully imposed under the Constitutional requirements of BLAKELY v. WASHINGTON, 124 S. Ct. 1493.

3. The defendant's will was overborne by will, duress, and coercion by my age at the time of the offense and the age of co-defendant Overton at the time of the instant offense. The case, Blakely v. Washington, 124 S.Ct. has ramifications as applied to this matter, including the Confrontation Clause of the 6th Amendment which was intended to prohibit 'testimonial hearsay '

I

We first address the points raised in counsel's brief. Defendant contends for the first time here that the jury was not properly instructed on accomplice liability because the charge did not include an option for the jury to find that she intended to commit second degree robbery, rather than first. She argues

[I]t is imperative that juries be advised that while the principal in a crime may have intended to commit a more serious offense, his or her accomplice may not have intended to commit the more serious offense, but, rather, might only have intended to commit a lesser included offense. Thus, even if a defendant aids in the commission of a robbery, he is not guilty of armed robbery unless he shared the purpose to use a weapon during the crime.

Defendant relies on an absence of testimony by Neetu and Ishvar that defendant had used a knife to threaten them. She maintains that "unless defendant had shared Overton's intent to commit armed, as opposed to unarmed robbery, she could be found guilty only of the second degree offense."

The trial judge gave the following charge to the jury on accomplice liability:

To prove the defendant's criminal liability, the State does not have to prove accomplice status by direct evidence of a formal plan to commit a crime. There does not have to be verbal agreement by all who are charged. The proof may be circumstantial. Participation and agreement can be established from conduct as well as the spoken word.

Mere presence at or near the scene does not make one a participant in the crime; nor does the failure of a spectator to interfere make her a participant in a crime. It is, however, a circumstance to be considered with the other evidence in determining whether she was present as an accomplice.

Presence is not, in itself, conclusive evidence of that fact. Whether presence has any probative value depends on the total circumstances. To constitute guilt, there must exist a community of purpose and actual participation in the crime committed.

While mere presence at the scene of the perpetration of a crime does not render a person a participant in it, proof that one is present at the scene of the commission of the crime without disapproving or opposing it is evidence from which, in connection with other circumstances, it is possible for the jury to infer that she totally assented thereto, lent to it her countenance and approval, and was thereby aiding in the same.

It depends upon the totality of the circumstances as those circumstances appear from the evidence.

An accomplice may be convicted on proof of the commission of the crime or of her complicity therein even though the person who is claimed - who it is claimed committed the crime has not been prosecuted or has not been convicted, or has been convicted of a different offense or different degree of offense, or has immunity from prosecution conviction, or has been acquitted.

In order to convict these defendants as accomplices to the crimes charged, you must find that each of the defendants had the purpose to participate in that particular crime; that she acted with the purpose of promoting or facilitating the commission of the substantive crime with which she was charged.

It is not sufficient to prove only that the defendant had knowledge that the other person was going to commit the crime charged. The State must prove that the defendant's conscious object was that the specific conduct charged be committed.

[Emphasis added.]

The judge then enumerated the elements of the offenses charged, stating that "the State must prove each of the . . . elements beyond a reasonable doubt."

"When a prosecution is based on the theory that a defendant acted as an accomplice, the trial court is required to provide the jury with understandable instructions regarding accomplice liability." State v. Savage, 172 N.J. 374, 388 (2002); State v. Weeks, 107 N.J. 396, 410 (1987). When reviewing a jury instruction, we must examine the challenged language in the context of the entire charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368, 373 (1973); State v. DiFrisco, 137 N.J. 434, 491 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Here, it is clear that the trial judge specifically charged the jury that in order to convict defendants as accomplices, it "must find that each of the defendants had the purpose to participate in that particular crime; that she acted with the purpose of promoting or facilitating the commission of the substantive crime with which she was charged." The judge further instructed the jury that "[i]t is not sufficient to prove only that the defendant had knowledge that the other person was going to commit the crime charged." (Emphasis added). Thus, the trial judge made it clear to the jury that it had to find that defendant shared Overton's intent to commit armed robbery. In reviewing the entire charge, we are satisfied that the trial judge properly charged the jury on accomplice liability.

Defendant next argues that the jury was not properly charged on defendant's "intent" to commit robbery and that a proper jury instruction would have charged the lesser included offense of second degree robbery.

"[W]hen an alleged accomplice is charged with a different degree offense than the principal[,] or lesser included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (quoting Weeks, supra, 107 N.J. at 410).

The trial judge instructed the jury that it could not convict defendant as an accomplice unless it found that she "possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act . . . [and] that [defendant] possessed the same intent." He further instructed the jury that it must view each defendant's culpability separately on each separate offense. The judge reminded the jury that it must find that defendant had the purpose to commit the "particular crime" of which she was accused of being an accomplice, and that she acted to promote or facilitate that crime.

The judge explained the elements of first degree robbery and contrasted them with the elements of second degree robbery. He emphasized that the jury's consideration of guilt would necessarily include an evaluation of whether defendants had used a deadly weapon in the course of the robbery, elevating it to a first degree crime.

During a break in the jury charge, counsel for Gonzalez asked the trial judge to advise the jury that it could reject Overton's testimony that the two female defendants had been his accomplices. The judge agreed and charged the jury accordingly. At the completion of the jury charge, the judge asked counsel if there were any exceptions to the additional instruction and counsel responded "no."

During their deliberations, the jurors asked the judge to re-define accomplice liability, and the judge repeated the model jury charge he had given previously. Again, the judge asked counsel if there were "[a]ny exceptions to the re-instruction in the answer to the jury's questions?" Defendant's counsel responded, "No, Your Honor."

Defendant's failure to object to the accomplice charge as given by the trial judge relegates this issue to consideration under the plain error standard. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997); State v. Green, 86 N.J. 281, 289 (1981). "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.'" Afanador, supra, 151 N.J. at 54 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Not any possibility of an unjust result will suffice. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Moreover, where counsel fails to object, it may be presumed that the jury instructions were adequate. Id. at 333. The absence of an objection is indicative that trial counsel perceived no prejudice would result. State v. Wilbely, 63 N.J. 420, 422 (1973).

We have carefully reviewed the charge in its entirety, and we are satisfied that there was no "'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous'" to warrant reversal. Afanador, supra, 151 N.J. at 54 (quoting Jordan, supra, 147 N.J. at 422).

II

Defendant next argues through counsel that the disparity between the twelve-year sentence imposed on Overton and the fifteen-year sentence imposed on her renders her sentence manifestly unjust and unduly prejudicial. This issue was not raised before the trial court and is subject to the plain error rule.

Our scope of review with respect to excessive sentence arguments is limited to a determination of whether the trial court abused its discretion. State v. Spinks, 66 N.J. 568, 573-74 (1975). We may modify sentences only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).

"[A] sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." State v. Roach, 167 N.J. 565, 570 (2001) (citing State v. Hicks, 54 N.J. 390, 391 (1969)). We are, nevertheless, mindful that "there . . . can be no justice without a predictable degree of uniformity in sentencing." State v. Hodge, 95 N.J. 369, 379 (1984). Sentences should not depend upon "chance or the luck of the judicial draw." Roach, supra, 167 N.J. at 570.

We have carefully considered the record in light of defendant's arguments, and we are satisfied that the sentence to the presumptive term was well within the trial court's discretion.

III

In its cross-appeal, the State argues that the trial judge should have imposed a NERA parole ineligibility term on the first degree kidnapping charges because they qualify as violent crimes under NERA.

The offenses of which defendant was convicted occurred in February 2000. NERA was amended in 2001 to include kidnapping as a predicate offense for imposition of 85% parole ineligibility. The pre-amendment statute applied only to first and second degree "violent crimes." The pertinent sections of the pre-amendment statute are as follows:

a. A court imposing a sentence of incarceration for a crime of the first or second degree shall fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime as defined in subsection d. of this section.

. . . .

d. For the purposes of this section, "violent crime" means any crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S.A. 2C:11-1, or uses or threatens the immediate use of a deadly weapon. "Violent crime" also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force.

For the purposes of this section, "deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury.

[N.J.S.A. 2C:43-7.2a and d (1997).]

At sentencing, the State advocated for the imposition of a NERA parole ineligibility term on the kidnapping counts. The judge declined to do so, indicating that he would "err on the side of caution and impose an 85-percent No Early Release Act sentence only on the robbery with a deadly weapon, and not on the kidnapping charges, because I think that the jury should have under the circumstances and the timing of this incident, given the state of our law, prior to the amendment of the No Early Release Act, should have addressed the violence under the kidnapping charge." We agree.

Under pre-amendment NERA, the 85% ineligibility should have been imposed only if the jury found the elements of a violent crime. Although the trial judge instructed the jury on the elements of kidnapping, he did not instruct the jury on the meaning of violent crime under NERA. In order to determine whether first degree kidnapping constituted a violent crime within the meaning of NERA, the jury should have been instructed on the meaning of "death or serious bodily injury" in the course of the kidnapping. State v. Natale, 178 N.J. 51, 54 (2003) (Natale I) (holding that "[i]n the event that the State seeks to have the court impose a NERA sentence, the court shall try the NERA issue to a jury and the jury shall determine . . . whether defendant attempted to cause serious bodily injury or whether the defendant caused serious bodily injury").

The pre-amendment NERA statute defined a violent crime as one involving use or a threat to use a deadly weapon, irrespective of whether death or a serious injury resulted. The trial judge, however, did not instruct the jury on the use or threat to use a deadly weapon in the course of the kidnapping, although he did so on the robbery count. The fact that the jury found that defendants used or threatened to use a deadly weapon during the robbery does not mean that kidnapping should be considered a violent crime within the meaning of NERA absent a specific jury instruction. State v. Mosley, 335 N.J. Super. 144, 151 (App. Div. 2000), certif. denied, 167 N.J. 663 (2001).

We disagree with the State's contention that the jurors' finding that the robbery involved the use of a deadly weapon satisfies the requirements for finding that the kidnappings were violent crimes under pre-amendment NERA. In reviewing the sentence, however, we are satisfied that the imposition of the presumptive term does not constitute error under the circumstances presented.

IV

In her pro se brief, defendant raises a number of points without presenting arguments on the issues. She initially maintains that trial counsel was ineffective in failing to request jury instructions for simple assault, aggravated assault and aggravated assault with a deadly weapon; in failing to advise defendant of the advantages of testifying in her own defense; and in advising her not to accept the State's plea bargain prior to trial. These issues should be addressed in a petition for post-conviction relief pursuant to R. 3:22-2 and -4(c), where they may be explored in an evidentiary hearing if defendant satisfies the criteria for such a hearing. State v. Preciose, 129 N.J. 451, 460-61 (1992); State v. Shabazz, 263 N.J. Super. 246, 250-51 (App. Div.), certif. denied, 133 N.J. 444 (1993). The record before us is insufficient for us to make such a determination on direct appeal.

Defendant's remaining pro se arguments address sentencing issues arising out of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Defendant argues that her fifteen-year sentence violates the Blakely principles because the jury was not given the opportunity to determine the aggravating and mitigating factors. In State v. Natale, 184 N.J. 458, 484 (2005), the Supreme Court held that a sentence was limited to the presumptive term unless the judge found offender-based aggravating factors focusing on the defendant's prior criminal history. Id. at 466. Here, the presumptive term was imposed. N.J.S.A. 2C:44-1(f)(1)(b). Consequently, there is no Blakely or Natale violation and no basis for remanding to the jury for consideration of aggravating factors.

 
Affirmed.

(continued)

(continued)

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A-3905-03T4

January 24, 2006