STATE OF NEW JERSEY v. RANDY GRISSETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0730-06T40730-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RANDY GRISSETT,

Defendant-Appellant.

 

Submitted April 1, 2008 - Decided

Before Judges Skillman and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 01-10-1002-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Jason F. Statuto, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Randy Grissett appeals from a July 28, 2006 order denying his petition for post-conviction relief. We affirm.

In 2001, defendant was convicted of first-degree robbery, fourth-degree unlawful possession of a weapon, a knife, and third-degree hindering apprehension. After merging the weapons conviction into the robbery conviction, the trial court imposed a fifteen-year prison term on the robbery conviction, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a concurrent five-year sentence on the hindering conviction.

On direct appeal, defendant raised the following points:

POINT ONE

DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S FAILURE TO TAILOR THE CHARGE TO THE FACTS WHICH ALLOWED THE JURY TO ERRONEOUSLY BELIEVE THAT IF DEFENDANT USED THE KNIFE FOR A PROTECTIVE PURPOSE ONLY, HE COULD STILL BE GUILTY OF ROBBERY. (U.S. CONST. AMEND. V, XIV; N.J. CONST. (1947) ART. 1, PAR. 10). (Not Raised Below).

POINT TWO

THE EVIDENCE CLEARLY INDICATED THE NEED FOR A JURY INSTRUCTION ON SELF-DEFENSE. (Not Raised Below).

POINT THREE

THE ROBBERY CONVICTION MUST BE REVERSED BECAUSE IT IS HOPELESSLY INCONSISTENT WITH THE ACQUITTAL ON COUNT TWO.

POINT FOUR

GIVEN THE CIRCUMSTANCES OF THE OFFENSE, AND THAT THE 85% PROVISION OF NERA APPLIED TO THE SENTENCE, A FIFTEEN YEAR BASE TERM WAS EXCESSIVE.

We affirmed, State v. Grissett, No. A-0993-01 (App. Div. Aug. 20, 2003), and the New Jersey Supreme Court denied defendant's petition for certification. 178 N.J. 252 (2003).

Defendant moved for post-conviction relief. On appeal from the court's order denying his petition, he raises the following legal arguments for our consideration:

POINT I

THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY THE FAILURE OF COUNSEL TO MAKE REQUESTS FOR INSTRUCTIONS AND TO RAISE DEFENSES.

A. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LAW OF ATTEMPT AND ATTEMPTED ROBBERY.

B. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LAW OF RENUNCIATION NOTWITHSTANDING A CLEAR FACTUAL BASIS IN THE EVIDENCE.

C. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE CLAIM[-]OF[-]RIGHT DEFENSE NOTWITHSTANDING A CLEAR FACTUAL BASIS IN THE EVIDENCE. (Not Raised Below)

D. THE TRIAL COURT FAILED TO INSTRUCT THE JURY PROPERLY ON THE LAW OF SELF-DEFENSE NOTWITHSTANDING A CLEAR FACTUAL BASIS IN THE EVIDENCE. (Not Raised Below)

E. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF ATTEMPTED THEFT NOTWITHSTANDING A CLEAR FACTUAL BASIS IN THE EVIDENCE. (Not Raised Below)

POINT II

THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE PREJUDICIAL ERROR IN A CASE OF WITNESS CREDIBILITY: THE TRIAL COURT PERMITTED THE READ-BACK OF MR. KERN'S TESTIMONY ALONE, TO THE EXCLUSION OF MR. GRISSET[T]'S TESTIMONY, WHICH PERTAINS TO THE EXACT SAME SUBJECT MATTER. CONSIDERING THE CLEAR LEGAL MANDATE TO RECORD JURY QUESTIONS, WHICH WAS NOT FOLLOWED HERE, IT MUST BE PRESUMED THAT PREJUDICE DID OCCUR IN THE ABSENCE OF CLARIFICATION BY THE STATE.

Having reviewed the record in light of these contentions and the applicable law, we conclude that the arguments are without merit and consequently we affirm the July 28, 2006 order.

In our prior opinion, we set forth the facts underlying defendant's conviction and we do not repeat them in detail at this time. To summarize, defendant was convicted of the robbery of Joseph Kern after he and Kern had a dispute over the return of a deposit defendant had given Kern for an automobile that Kern intended to sell him. According to Kern, defendant pulled a knife and held it against Kern's side, saying three times, "give me the money." Kern claimed that he pushed defendant away and then told a police officer what had happened. The officer pursued defendant who was leaving the area on a bicycle.

Defendant claimed that when he went to Kern's automobile repair shop to reclaim his deposit, Kern picked up a crowbar and told him to leave the shop. In response, defendant pulled out a pocket knife and demanded several times that Kern return his deposit money. Defendant testified that after Kern refused to return the money, defendant "folded the knife back up and put it [into his] pocket" and left the premises.

Defendant's petition for post-conviction relief is couched in terms of ineffective assistance of counsel. Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). The New Jersey Constitution affords defendants the same right. N.J. Const., Art. I, 10. To establish a prima facie case of ineffective assistance of counsel, a defendant must first show that defense counsel's performance was indeed deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, a defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987). Because "prejudice . . . is not presumed," id. at 52, a defendant must demonstrate "how specific errors of counsel undermine the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657, 668 (1984).

Defendant claims in points IA and IE of his brief that the evidence warranted jury instructions on the law of attempt, attempted robbery, and attempted theft. He asserts that his trial counsel was ineffective by failing to request the court to so instruct the jury, and because appellate counsel failed to raise that lack of instruction as plain error, she too was ineffective. We find no merit to these arguments.

Defendant was convicted of first-degree robbery. Robbery is defined in N.J.S.A. 2C:15-1 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.

"A prerequisite for a robbery conviction is a theft or attempted theft." State v. Farrad, 164 N.J. 247, 257 (2000). Even if the theft is unsuccessful, a defendant may be convicted of robbery "if he or she (1) purposely takes a substantial step (2) to exercise unlawful control over the property of another (3) while threatening another with, or purposely placing another in fear of, immediate bodily injury." Id. at 258. That is what happened here. Defendant testified that after he pulled the knife out of his pocket, he demanded money from Kern. It was not until after he made his demand, and Kern refused to give him the money, that defendant put the knife back into his pocket and left the premises. By pulling the knife and demanding money, defendant took a substantial step to take the money while threatening Kern with the knife.

Although attempted robbery remains a crime under the New Jersey Code of Criminal Justice, id. at 265, the facts here simply do not constitute that crime. As the Farrad Court observed,

"It should be noted that there will be cases, appropriately reached by a charge of attempted robbery, where the actor does not actually harm anyone or even threaten harm. If, for example, the defendant is apprehended before he reaches his robbery victim and thus before he has actually engaged in threatening conduct, proof of his purpose to engage in such conduct will justify a conviction of attempted robbery if the standards . . . [of attempt] are met."

[Id. at 260 (quoting The New Jersey Penal Code, Vol. II, Commentary, Final Report of the New Jersey Criminal Law Revision Commission, 114-15 (1971)).]

By his own admission, defendant did not put the knife away or leave the premises until after Kern refused his demand for money. In other words, defendant did not leave the premises "before he [] actually engaged in threatening conduct." Ibid.

According to the Model Jury Charge for "attempt," when a defendant is not charged with attempt in the indictment, the jury should be instructed on the crime of attempt when the facts raise a question of whether the crime was completed. Model Jury Charge (Criminal), "Attempt" (2008). Here, the facts did not raise a question as to whether the crime of robbery was completed. Under both defendant's and the victim's version of the facts, defendant demanded money from the victim while threatening the victim with a knife. That conduct constitutes robbery.

In his brief, defendant claims that the facts of his case are analogous to those in State v. Gonzalez, 318 N.J. Super. 527 (App. Div.), certif. denied, 161 N.J. 148 (1999). We disagree.

In Gonzalez, the defendant was convicted of, among other things, felony murder and first-degree robbery. Id. at 528. To sustain a felony murder charge, the State sought to prove that the defendant attempted to commit robbery and in the course of that attempt, he shot and killed the victim. Id. at 532-33. The testimony offered two versions of what happened.

First, defendant had given a statement to the police in which he indicated that he engaged in a scuffle with the victim after demanding the victim's money. Id. at 531. He further stated that he did not have a gun in his possession when the scuffle started. Id. at 532. During the scuffle, one of his codefendants suddenly appeared and offered the gun to him. Ibid. He used that gun to shoot the victim. Ibid.

At trial, the defendant related a different story. He recanted his statement, and testified that he had nothing to do with the crime. Ibid. Other witnesses also cast doubt about defendant's participation in the shooting. Id. at 535.

On appeal, we found that under the circumstances, the failure to charge attempt warranted a new trial. Id. at 536-37. A criminal attempt charge was warranted because, given the sudden appearance of the gun during the defendant's scuffle with the victim, the evidence presented a fact question as to whether the defendant purposefully used the weapon in the course of committing a theft. Id. at 536.

No such fact question exists here. Under Kern's version of events, defendant pulled the knife and actually held it against Kern's body while demanding money from him. Under defendant's version, he pulled the knife and demanded the money before putting the knife away and leaving the premises. Defendant's conduct under either version satisfies the elements of robbery.

As noted, to be successful in a petition for post-conviction relief, a defendant must not only show that counsel's performance was deficient, but also must demonstrate that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Under the circumstances here, even if we were to assume that trial counsel's performance was deficient by not requesting the court to instruct the jury on the law of attempt, defendant is nevertheless unable to demonstrate that even if the jury was so instructed, the result of the trial would have been different.

To determine whether defendant was subject to an eighty-five percent period of parole ineligibility under NERA, prior to its 2001 amendment, the jury was required to decide whether he committed the offense using or threatening the immediate use of a deadly weapon. Therefore, one of the jury interrogatories read as follows: "[I]n connection with the charge of robbery, first degree, did the defendant commit this offense using or threatening the immediate use of a deadly weapon, namely a knife, is your answer yes or no?" The jury answered: "Yes." By that answer, the jury found that defendant committed the robbery by using or threatening the use of a knife. In light of this finding, it is highly unlikely that the jury would have found that defendant's actions were not purposeful and he did not take a substantial step to complete the robbery. In other words, defendant has failed to demonstrate "a reasonable probability" that but for defense counsel's failure to request an attempt charge, "the result of the proceeding would have been different." Ibid., 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Defendant's remaining points on appeal require little discussion. He claims that both trial counsel and appellate counsel provided ineffective assistance by failing to request, and raise on appeal, respectively, various other jury instructions. In point IB of his brief, defendant asserts that he was entitled to a charge on the defense of renunciation. Renunciation is a defense when a defendant proves "by a preponderance of the evidence that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose." N.J.S.A. 2C:5-1d. Renunciation is charged to the jury only when the defendant's conduct would otherwise constitute an attempt. Model Jury Charge (Criminal), "Attempt," supra, at 4. Here, for the reasons we have just expressed, defendant's own testimony shows that he did not abandon his effort to commit the crime of robbery. It was only after the crime was completed that he put his knife away and left the premises. Thus, trial counsel was not ineffective for failing to request a renunciation charge, nor was appellate counsel ineffective for failing to raise that issue on appeal.

In point IC of his brief, defendant claims that trial counsel and appellate counsel were ineffective as a result of the court's failure to instruct the jury on a claim-of-right defense. Defendant asserts that he had a right to the return of his deposit monies and the jury therefore should have been instructed on the claim-of-right defense as is delineated in N.J.S.A. 2C:20-2c. A claim-of-right defense does not exist, however, to the charge of robbery. State v. Mejia, 141 N.J. 475, 500 (1995). Defendant's arguments on this issue are without merit.

In point ID of his brief, defendant argues that the court's failure to instruct the jury on the law of self-defense is grounds for reversal. On direct appeal, we concluded that the evidence did not require a jury instruction on self-defense. State v. Grissett, supra, No. A-0993-01 (slip op. at 11). Defendant's argument on this issue is consequently barred. R. 3:22-5.

Finally, in point II of his brief, defendant claims he was denied a fair trial when the trial court permitted the read-back of Kern's testimony, without also reading back the portion of defendant's testimony pertaining to the same subject. That argument is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

(continued)

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A-0730-06T4

April 22, 2008