STATE OF NEW JERSEY v. ALPHONZO EDWARDS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2241-07T42241-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALPHONZO EDWARDS,

Defendant-Appellant.

_____________________________

 

Submitted May 19, 2009 - Decided

Before Judges Collester and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment

No. 05-11-2416-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Daniel V. Gautieri, Assistant

Deputy Public Defender, of counsel and on the

brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mary R. Juliano,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Tried to a jury, defendant Alphonzo Edwards was convicted of first-degree armed robbery, contrary to N.J.S.A. 2C:15-1, and unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-4(d). Following defendant's conviction, the State filed a motion to sentence defendant to a life term without parole pursuant to N.J.S.A. 2C:43-7.1. On June 20, 2007, the court granted the motion and imposed a sentence upon defendant of life without parole following merger of the weapons charge with the first-degree robbery.

On appeal defendant makes the following arguments:

POINT I - THE PROSECUTOR COMMITTED MISCONDUCT AND REDUCED THE STATE'S BURDEN OF PROOF IN HIS SUMMATION WHEN HE PROVIDED AN INACCURATE DEFINITION WHILE DISCUSSING THE INTOXICATION DEFENSE. (Not Raised Below.)

POINT II - THE JUDGE'S CHARGE REGARDING THE LESSER-INCLUDED THEFT OFFENSE IMPROPERLY SUGGESTED THAT SUCH AN OFFENSE WAS NOT OF EQUAL WEIGHT TO OFFENSES CHARGED IN THE INDICTMENT, AND MAY HAVE LED JURORS TO REJECT THE LESSER-INCLUDED OFFENSE. (Not Raised Below.)

The State's proofs against defendant at trial were overwhelming. On September 3, 2005, at about 8:30 p.m. a man entered the discount liquor store in Neptune Township wearing a mask and baseball cap and his right hand covered. He pointed his right hand at Jo George, an employee, and told him to open the register. After George opened and closed the register, the man pulled the register off the counter and slammed it to the floor, causing the cash drawer to open. As he did so, the object he was holding in his right hand fell to the floor. It was a knife with a five-inch blade.

The store manager walked to the front of the store and was alerted by the sound of the cash register falling to the floor. He saw the masked man and then hit the panic button under the counter to notify the police. The manager and Pablo DeJesus, another employee, wrestled with the man and pulled off the hat and mask revealing the man's face. The robber fled, dropping cash taken from the register as he ran toward a bicycle. DeJesus pulled the man to the ground, and money scattered everywhere. The robber swung the knife at DeJesus, jumped a fence and escaped into a wooded area. When the police responded, they were advised of a surveillance tape that recorded the incident. They also collected the mask and hat worn by the robber.

Kathleen Matovsky lived directly across the street from the liquor store. On the date and time of the robbery she heard a commotion across the street. At 3 a.m. she awoke and let her dogs out in her yard. When they returned, one of the dogs dropped a billfold at her feet. The billfold contained defendant's social security card, picture identification, birth certificate as well as a pawn slip and medical form bearing defendant's name. Ms. Matovsky turned over the billfold and loose cash found in her backyard to the police.

Based upon the identifying documents found in the Matovskys' yard and the surveillance video from the store, the police constructed a photo array. DeJesus viewed the array and immediately identified the defendant. On December 9, 2005, defendant was located and arrested at a crack house. Abrasions on his knees, shin, back and shoulder were consistent with the altercation following the robbery. Months later, on March 23, 2006, authorities obtained a buccal swab from defendant for DNA analysis. At trial the State police forensic scientist analyzed the DNA profiles lifted from the ski mask and baseball cap and compared them to the control DNA sample from the buccal swab. The DNA on the hat and mask matched defendant's DNA sample. Finally, the jury was shown the video from the liquor store which reflected three separate angles of surveillance from which still pictures were made that depicted defendant.

The defense was voluntary intoxication. Defendant testified that he grew up in Alabama and began drinking "moonshine" when he was only ten or eleven years old. Within four or five years he became a blackout drinker, and at times the blackouts would last days. He testified that he stopped drinking moonshine when he moved to New Jersey but became addicted to beer and committed crimes as a result. When he was last released from prison, he began using cocaine in addition to drinking alcohol. He said on September 1, 2005, two days before the robbery, he spent his entire paycheck on cocaine, vodka, beer and cigarettes. He said that after drinking the vodka and using the cocaine, he had a blackout that lasted five days. He remembered nothing during that time.

The defense of voluntary intoxication is presented when the defendant's faculties are so prostrated at the time of the offense that he is incapable of acting knowingly or purposely. State v. Cameron, 104 N.J. 42, 54 (1986). Defendant's first argument on appeal is that the prosecutor misstated the law in summation and lowered the State's burden of proof by giving an incorrect definition of the phrase "prostration of faculties." In the course of summation, the prosecutor stated:

Let's look at what an intoxication defense really means, because it doesn't mean just because you are intoxicated and you commit a crime that you now have the intoxication defense. That's what it doesn't mean.

Let me say that again just because you are intoxicated and you commit a crime you do not automatically have an intoxication defense. It's actually a very high standard. The intoxication defense as the Judge will instruct you is not being merely excited by intoxicated drink. It means that you are too prostrated as to deprive one of his will to act and ability to reason.

The definition I saw in the dictionary last night was lying flat on the ground and overcome, reduced to helplessness. That's how intoxicated you'd have to be, reduced to helplessness, so prostrated that you lose the will to act, the ability to reason.

A blackout is not the same. It's not equal to not having purposeful conduct. Whoever performed this armed robbery did a lot of purposeful things. That person made a plan. They had a mask to cover their face. They had a bag for the money they were planning on getting.

All these thing are purposeful conduct, thousands of purposeful steps on the way starting [with] the crime, through the crime, and ending the crime. Having the knife, having the bicycle as a getaway. Moving directly towards the cash register.

Voluntary intoxication is not a defense to a crime "unless it negatives an element of the offense." N.J.S.A. 2C:2-8(a). In order for intoxication to negative an element of the offense, there must be a "prostration of faculties," which is as "a disturbance of mental or physical capacities resulting from the introduction of substances to the body" so that the actor is unable to form the requisite purpose to commit the crime. N.J.S.A. 2C:2-8(e)(1). See also Cameron, supra, 104 N.J. at 48; State v. Keys, 331 N.J. Super. 480, 493-94 (Law Div. 1998), aff'd o.b., 331 N.J. Super. 429 (App. Div.), cert. denied, 165 N.J. 607 (2000).

Defendant argues that the prosecutor's reference to a dictionary definition for "prostrate" was erroneous and that the error was compounded by the trial judge's failure to sua sponte give a proper legal definition. However, the court properly charged the jury to disregard statements of the law by the prosecutor and defense counsel and accept only the law as stated by the court. Furthermore, the judge delivered the following Model Charge on intoxication negating an element of the offense:

In considering the question of intoxication, you should carefully distinguish between the condition of mind which is merely excited by intoxicating drink and yet capable of acting with purpose and the condition in which one's mental facilities are so prostrated as to deprive one of his will to act and ability to reason, thereby rendering a person incapable of acting and thus preventing the person from committing the crime charged with the mental state required of purposely.

No objection was taken to the prosecutor's summation or to the judge's charge so that our scope of review is under the plain error standard. See R. 2:10-2. We perceive no error clearly capable of producing an unjust result. Possible prejudice was harmless beyond a reasonable doubt, State v. Macon, 57 N.J. 325, 330 (1971), and the court's charge clearly stated the law.

 
The remaining arguments raised by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

(continued)

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A-2241-07T4

July 27, 2009