STATE OF NEW JERSEY v. MIKAL McCLAIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5805-03T45805-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIKAL McCLAIN,

Defendant-Appellant.

_________________________________________________

 

Submitted January 10, 2006 - Decided June 26, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

I-02-03-1091.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Stephen M. Bunda,

Designated Counsel and on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Maura K. Tully, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Mikal McClain appeals from his conviction for first-degree armed robbery, N.J.S.A. 2C:15-1 (count two), third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count three), second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count four), fourth-degree resisting arrest by engaging in flight, N.J.S.A. 2C:29-2a (count five), and third-degree hindering apprehension by giving a false name, N.J.S.A. 2C:29-3b(4) (count seven). He appeals as well from his sentence of twenty years in custody, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery charge and three five-year concurrent terms with two and one-half years of parole ineligibility for unlawful possession of a weapon, resisting arrest and hindering apprehension. The State concedes error in imposing a five-year term for resisting arrest, which charge had been reduced to a fourth-degree offense prior to trial.

On appeal, defendant makes the following arguments through counsel:

POINT I

Since the evidence was insufficient to warrant a conviction beyond a reasonable doubt, the trial court erred in denying defendant's motion for a Judgment of Acquittal.

POINT II

The Sentence of the court was manifestly excessive and this matter must be remanded for resentencing because the sentence imposed violated the Sixth and Fourteenth Amendments to the United States Constitution.

Defendant has additionally submitted three pro se briefs. In the first, he makes the following arguments:

DID TRIAL COUNSEL DENY DEFENDANT THE RIGHT TO CALL A CRITICAL WITNESS.

WAS THE INDICTMENT MISLEADING.

DID TRIAL COURT GIVE PARTIAL JURY CHARGE ON COUNT-TWO DENYING DEFENDANT A FAIR EVALUATION.

STATE HAS FAILED TO [PROVE] AN ELEMENT "SERIOUS BODILY INJURY" BEYOND A REASONABLE DOUBT.

TRIAL COURT GAVE DEFICIENT AND MISLEADING JURY INSTRUCTION. THEREBY, PREJUDICE DEFENDANT TO A FAIR TRIAL.

TRIAL COURT GAVE DEFICIENT AND MISLEADING JURY INSTRUCTION ON IDENTIFICATION.

In a supplemental brief, defendant argues:

TRIAL COURT FAILED TO SPECIFICALLY INSTRUCT THE JURY TO FIND THE NERA VIOLENT CRIME PREDICATE.

Finally, in a third brief, defendant raises the following argument:

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE IRVINGTON POLICE CONDUCTED AN ILLEGAL SEARCH AND SEIZURE ON THE VEHICLE WITHOUT A SEARCH WARRANT VIOLATING THE DEFENDANT'S RIGHT TO DUE PROCESS. CONST. AMEND. 4TH, 5TH, 6TH, AND 14TH. ART. I PAR. 7 & 10.

We affirm defendant's convictions, but vacate his sentence, and remand for resentencing.

I.

Defendant first claims that the evidence was insufficient to support a conviction on the robbery charge, since it was contested by an alibi witness, and that a motion for a judgment of acquittal should have been granted. We disagree.

Evidence introduced by the State established that the victim, George Haley, had traveled to a bar on Lyons Avenue in Irvington with two women to purchase beer, while a friend, George Gayles, accompanied them in a separate car. Both men parked their cars at a nearby Sunoco station. Gayles remained in his vehicle while the other three made their purchase. On their return, Gayles saw that Haley was being followed, but was unable to alert him to that fact. While Gayles watched, Haley was hit over the head with a gun by the assailant, who demanded money. Eventually, the assailant hit Haley in the head four times and took Haley's wallet, as well as the purses of the two women and jewelry. When, during the course of a struggle over the gun, it fired, Gayles took off and eventually summoned the police.

Upon the police's arrival, the assailant was found with his arm in a car that was later observed to contain the two purses, jewelry and the gun. After he was captured following a pursuit, he was found to have Haley's wallet on his person. Defendant was identified by Haley as the assailant.

Although defendant did not testify, he presented as an alibi witness Randy Harris, who testified that he and the defendant had been in the bar with two women. Eventually, they left, entering Harris's car to "talk." Defendant returned to the bar shortly before the police's arrival. Harris stated that he did not witness any robbery while he and defendant were together.

A review of the testimony demonstrates clearly that overwhelming evidence was introduced by the State to support a conviction and that no miscarriage of justice occurred. State v. Reyes, 50 N.J. 454, 459 (1967). The jury apparently did not believe defendant's alibi witness. However, its credibility determination does not mandate acquittal or a new trial. State v. Taccetta, 301 N.J. Super. 227, 241 (App. Div.), certif. denied, 152 N.J. 187 (1997).

Defendant's belated argument, raised for the first time on appeal, that the State should have called a police officer, not the victim, to testify to the discovery of the victim's wallet on the defendant's person lacks merit. The victim observed the search and the discovery, and thus was competent to present the evidence to which defendant now objects. No plain error occurred as a result of the manner in which the evidence was introduced. State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2.

II.

We find insufficient merit in defendant's pro se arguments to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments: In connection with various of his arguments, defendant alleges ineffective assistance by trial counsel. However, those arguments require consideration of evidence outside the record, and are thus the proper subject of a petition for post-conviction relief, not appeal. State v. Preciose, 129 N.J. 451, 461 (1992).

Defendant additionally makes a variety of arguments based on the fact that count two of the indictment charging first-degree robbery was premised upon the infliction or attempted infliction of serious bodily injury, whereas he was tried, the jury was charged, and he was convicted of first-degree armed robbery. We do not find that the indictment was so deficient that defendant was deprived of an opportunity to prepare an adequate defense. Defendant was also charged in the indictment with unlawful possession of a handgun and possession of a handgun for an unlawful purpose. Moreover, pre-trial discovery clearly disclosed the State's position that the victim was threatened with a handgun, the gun was fired, and the victim was repeatedly hit over the head with it, causing a laceration requiring stitches. In these circumstances, we find notification to defendant of the charges against him to have been adequate under the flexible standard articulated in State v. Branch, 155 N.J. 317, 324 (1998). We likewise find no error in the court's charge, which properly apprised the jury of the elements of first-degree armed robbery as well as the elements of the lesser-included offense of second-degree robbery with infliction of bodily injury. Defendant cannot reasonably complain that the charge of first-degree robbery causing serious bodily injury was not pursued.

Contrary to defendant's arguments, again raised for the first time on appeal, we find no plain error in the court's identification charge, which adequately encompassed evidence presented at trial and was detailed in its presentation of the factors requiring consideration by the jury with respect to this issue. State v. Walker, 322 N.J. Super. 535, 546-53 (App. Div.), certif. denied, 162 N.J. 487 (1999).

We likewise find no error in the alleged absence of a finding by the jury that the predicates for the application of NERA had been met. At the time of trial in October 2003, the NERA statute, N.J.S.A. 2C:43-7.2, had been amended to enumerate those first- and second-degree crimes to which it was applicable, among them, robbery. N.J.S.A. 2C:43-7.2d(9). The guilty verdict returned by the jury on that crime constituted a sufficient foundation for the imposition of sentence.

As a final matter, defendant argues that the warrantless search of the vehicle that was found to contain the gun, pocketbooks and jewelry was unconstitutional. However, the record discloses that the items, located on the floor of the car on the passenger side, were observable to anyone who "looked in." Their seizure was thus proper under the "plain view" exception to the warrant requirement. State v. Johnson, 274 N.J. Super. 137, 155 (App. Div.), certif. denied, 138 N.J. 265 (1994).

III.

Defendant also challenges his twenty-year sentence for armed robbery, which exceeded the presumptive term for the crime then in force and his three concurrent five-year terms, which also exceeded the presumptive. N.J.S.A. 2C:44-1f(b) and (d). We vacate those sentences and remand the matter for resentencing in light of State v. Natale, 184 N.J. 458 (2005). At that time, the court can also address its mistaken consideration of defendant's resisting arrest as a third-degree, rather than a fourth-degree, crime.

The conviction is affirmed; the matter is remanded for resentencing.

 

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A-5805-03T4

June 26, 2006