STATE OF NEW JERSEY v. DEBORAH KUNA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0228-06T40228-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEBORAH KUNA,

Defendant-Appellant.

 

Submitted January 21, 2009 - Decided

 
Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 02-09-1280-I.

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

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel; Patricia S. Toreki, Assistant County Prosecutor, on the brief).

PER CURIAM

Defendant, Deborah Kuna, appeals from Judge Citta's June 29, 2006 order denying her petition for post-conviction relief. On appeal, defendant raises the following arguments:

1. Rule 3:22-4 does not bar defendant's claim.

2. The proofs elicited during the plea colloquy did not satisfy first-degree robbery, rendering defendant's conviction invalid as a matter of law.

A. The Facts Did Not Establish That Defendant Purposely Attempted to Inflict "Serious Bodily Injury" on the Victim.

B. The Use of Mace Did Not Constitute a "Deadly Weapon."

3. Defendant received ineffective assistance of trial or appellate counsel because counsel failed to challenge the sufficiency of the first-degree robbery conviction.

We affirm substantially for the reasons expressed by Judge Citta in his thorough and well-reasoned oral opinion on June 23, 2006.

On September 1, 2002, defendant and two male codefendants committed a home invasion robbery on a seventy-eight-year-old woman in a retirement community. Defendant provided one of the men with a can of spray mace to use during the robbery. After defendant knocked on the door requesting to use the telephone, a codefendant pushed his way inside, and sprayed the victim with mace; defendant heard the victim screaming in fear. Defendant and her codefendants stole approximately $600 from the victim's home.

An Ocean County grand jury indicted defendant and her codefendants, charging them with second-degree conspiracy, N.J.S.A. 2C:5-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1, N.J.S.A. 2C:2-6 (count two); second-degree burglary, N.J.S.A. 2C:18-2, N.J.S.A. 2C:2-6 (count three); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), N.J.S.A. 2C:2-6 (count four); and third-degree theft, N.J.S.A. 2C:20-3, N.J.S.A. 2C:2-6 (count five). On January 27, 2003, in return for the State's agreement to cap her sentence at fifteen years, with an eighty-five percent period of parole ineligibility and a five-year period of parole supervision subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, defendant entered a guilty plea to count two, first-degree robbery. The State agreed to dismiss the remaining counts of the indictment.

During the plea colloquy, the prosecutor asked defendant the following question: "[W]as the purpose of spraying the lady with the mace to make her less able to resist the theft the three of you were committing inside the house?" Defendant answered "yes." The prosecutor then asked: "And do you agree that spraying a seventy-eight-year old lady with mace and attacking her could cause her death?" Defendant answered "yes." The prosecutor then asked if, under the circumstances, was that what defendant and her codefendants set out to do when they entered her house. Again, defendant answered "yes."

On August 22, 2003, the court accepted defendant's plea to first-degree robbery and imposed the sentence pursuant to the plea agreement. Following the entry of an amended judgment of conviction to reflect a change in defendant's jail credits, on January 12, 2005, an excessive sentencing panel of this court affirmed. The Supreme Court denied defendant's petition for certification.

On June 13, 2005, defendant filed a petition for post-conviction relief. She argued that the facts presented when she entered her plea were insufficient to support a conviction for first-degree armed robbery because none of the defendants were armed with, displayed, or used, a deadly weapon. The trial court denied the application for two reasons. The court ruled that defendant's application was procedurally barred by Rule 3:22-4, as defendant should have raised the issue on direct appeal and failed to do so. The court then turned to defendant's allegation that her trial and appellate counsel were ineffective for not arguing that the factual basis for her plea was insufficient to support a first-degree robbery conviction. In finding that the proofs were sufficient, Judge Citta made the following findings:

Our statute says that, "Robbery is a crime of the first degree if, in the course of committing a theft, the actor is armed with or uses or threatens the immediate use of a deadly weapon."

N.J.S.A. 2C:15-1(b), a "deadly weapon" is defined in our statutes as, "Any firearm or other weapon, device, material or substance which in the manner it is used is known to be capable of producing death or serious bodily injury, or in the manner in which it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury."

Under [N.J.S.A.] 2C:11-1(c), "serious bodily injury" is defined in our statutes as, "Bodily injury which creates a substantial risk of death, or causes serious permanent disfigurement, or protracted loss or . . . impairment of the function of any bodily member or function."

The defendant argues, however, that [N.J.S.A.] 2C:39-6(i) allows persons who are not felons to possess a small amount of mace for personal defense. It's further argued that this statute characterizes such possession as chemical substance not ordinarily capable of lethal use or inflicting serious bodily injury, and therefore mace or pepper spray cannot, by definition, be a deadly weapon in the context of a robbery conviction.

In this Court's view, that's a misapplication of [N.J.S.A.] 2C:39-6(i). This Court interprets that statute as allowing and merely making lawful a non-felon to possess a small amount of mace for personal possession and personal protection. It specifically limits such possession to chemical substances not ordinarily capable for lethal use that are intended to produce temporary physical discomfort or disability.

In this case the manner in which this device was used reasonably could lead any victim of a home intrusion and a robbery of force of this nature to reasonably conclude and believe that this weapon, in the manner that it was presented and used on that occasion, to perceive it reasonably to be a deadly weapon.

. . . .

The point is that on this occasion, these perpetrators, this defendant included, intended to convey to this victim that they were armed with a weapon sufficient to disable her so that her cause to resist or her natural instinct to resist would be nullified by the fear of the presence of that weapon.

In all circumstances, I see no logical conclusion then to reasonably find that in the manner in which this weapon was used and intended to be used on that occasion a reasonable person would [not have concluded] it to be a lethal weapon.

On appeal, defendant claims that spraying the victim with mace with the intent to subdue her did not constitute the purposeful infliction, or an attempt to inflict, serious bodily injury. Defendant asserts that mace is not a deadly weapon for the purpose of elevating the robbery from second-degree to first-degree pursuant to N.J.S.A. 2C:15-1b. We reject those arguments.

A deadly weapon is defined as follows:

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 or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.

[N.J.S.A. 2C:11-1c.]

This definition "embraces two discrete categories." State v. Riley, 306 N.J. Super. 141, 146 (App. Div. 1997). The first category is firearms, which are per se deadly weapons, and the second category is more inclusive, constituting "every other material object that can be used or intended to be used in such a way as to cause death or serious bodily injury or is so fashioned to lead the victim to believe it has that capacity." Ibid. The second category includes both per se weapons that are not firearms, and a "class of all those objects having a wide variety of lawful uses but which may take on the character of a deadly weapon because they are both capable of inflicting death or serious bodily injury and have in fact been so used or are intended to be so used or are so fashioned to lead the victim of a crime to believe they can be so used." Id. at 146-47. To determine whether the weapon fits the second class of objects classified as deadly weapons, requires an objective analysis based upon the circumstances. Id. at 147. The question is whether "a particular defendant possess[ed] a particular object at a particular time and in a particular situation with the intention of using it as a weapon." Ibid.

Here, defendant's testimony at the plea hearing shows that the mace satisfies this second class of deadly weapons. A reasonable inference from defendant's testimony is that she and her codefendants intended to use the mace as a weapon, and in fact did so use it in macing the terrified victim. And, given the circumstances of the home invasion, as the trial judge aptly stated, the mace was a device or substance "in the manner in which [it] was used and intended to be used on that occasion a reasonable person would conclude it to be a lethal weapon." Consequently, defendant has failed to establish a prima facie case of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Defendant's remaining arguments are without sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the trial court.

 
Affirmed.

(continued)

(continued)

8

A-0228-06T4

February 17, 2009