STATE OF NEW JERSEY v. HAKIM Y. SPENCER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3374-07T23374-07T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HAKIM Y. SPENCER a/k/a: LAWRENCE

BENNETT, JASON MILLER, HAKEEM SPENCER,

HAKEAN SPENCER,

Defendant-Appellant.

______________________________________

Argued May 3, 2010 - Decided June 9, 2010

Before Judges Lisa, Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-01-0079, 06-02-0613 and 06-11-3540.

John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Douard, of counsel and on the brief).

Hilary L. Brunell, Executive Assistant Prosecutor, argued the cause for respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Ms. Brunell, on the brief).

PER CURIAM

On Indictment No. 06-01-0079, a jury found defendant guilty of first degree armed robbery, N.J.S.A. 2C:15-1, and fourth degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(d). On Indictment No. 06-02-0613, defendant then pled guilty to first degree robbery. Defendant also pled guilty to all of the counts of Indictment No. 06-11-3540, which resulted in convictions for second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); four counts of fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a); fourth degree resisting arrest, N.J.S.A. 2C:29-2; and fourth degree obstruction of justice, N.J.S.A. 2C:29-1. After denying defendant's motion for a new trial, the trial judge imposed the following terms of imprisonment: on Indictment No. 06-01-0079, twenty years; on Indictment No. 06-02-0613, ten years; and on Indictment No. 06-11-3540, five years on count one, four concurrent eighteen month terms on counts two, through five; and five years concurrent on count six. The sentences imposed on the three indictments were consecutive and all subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

On appeal, defendant argues for reversal because the judge failed to charge the jury on the subject of attempted theft (POINT I); erroneously denied the new trial motion (POINT II); erroneously charged the jury on defendant's election not to testify (POINT III); and abused his discretion by imposing an excessive sentence (POINT IV).

We reverse the conviction on the case tried to a jury because of the judge's failure to properly charge attempted theft. That renders POINT II and POINT III moot. We also note that the argument offered in POINT II is based on an argument we rejected in State v. Miller, 411 N.J. Super. 521, 532-33 (App. Div. 2010). POINT IV, the sentencing argument is based on the imposition of three consecutive sentences. Since we are reversing one of those sentences, the argument based on three consecutive sentences is moot as well. The remaining two sentences and the findings of aggravating and mitigating factors on which they are based are supported by the record. Neither sentence was an abuse of discretion and running them consecutively is consistent with the Yarbough principles. Consequently, we affirm the judgment insofar as it concerns the two indictments as to which defendant entered guilty pleas.

I

THE JURY TRIAL

On September 1, 2005, at approximately 5:00 p.m., Tyrone Simpson was working at Carmashin's Pharmacy in Newark. Defendant walked into the store through the front entrance carrying a bag over his left shoulder. He had on a yellow hard-hat, a jacket, jeans, and boots, and a dust mask, which was around his neck. Simpson immediately recognized defendant as someone he had seen twice before in the store and also said that he knew where defendant lived. Defendant was standing about six feet away from Simpson when he pulled up the mask. After pulling on the mask, defendant reached into the bag and told Simpson to "back up before I pop you." After Simpson backed up about twenty-five feet into the store, defendant pulled out of the bag what appeared to Simpson to be a sawed-off shotgun.

Defendant told Shemqua Datwani, the store manager, "to give him the money." Datwani thought defendant was holding a stick, a club, or a gun. While defendant was confronting Datwani, Simpson and a customer escaped through a door at the rear of the store. Simpson saw a police car and reported the robbery to Detective Lima of the Newark Police Department. Simpson entered the patrol car and Lima drove to the front of the store. In the meantime, Datwani had also been able to flee the store. Defendant did not take anything belonging to the store or its occupants.

When Lima and Simpson arrived at the front of the store, they saw defendant in flight with what appeared to be a "shotgun barrel" in his left hand. They gave chase, running after defendant, losing sight of him momentarily, but later finding him "running and hopping fences." By then the defendant had shed his jacket, shirt, and hat. With the help of other police officers, Lima cornered defendant as he was trying to enter the rear door of a house. The entire chase took about fifteen minutes. Simpson immediately confirmed that defendant was the robber, later also identifying him in court at the trial. Lima retraced defendant's route, recovering the gun and the bag.

II

Defendant's first point, the failure to charge attempted theft, was not raised at trial. Consequently, the plain error rule applies. State v. Adams, 194 N.J. 186, 206-07 (2008); R. 2:10-2. Reversal is thus not appropriate unless the "error possessed a clear capacity to bring about an unjust result." Adams, supra, 194 N.J. at 207 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Moreover, in assessing the effect of the error, we are bound to consider "the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006). But, we must also keep in mind that "[s]o critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error." State v. Martin, 119 N.J. 2, 15 (1990). The judge "must explain the controlling legal principles and the questions the jury is to decide." Ibid. Indeed, "erroneous instructions are almost invariably regarded as prejudicial. Such errors are 'poor candidates for rehabilitation under the harmless error philosophy.'" State v. Vick, 117 N.J. 288, 289 (1989) (quoting State v. Crisantos (Arrigas), 102 N.J. 265, 273 (1986)).

The judge instructed the jury, among other things, that robbery requires proof that the defendant purposely threatened a victim with immediate bodily injury "in the course of committing a theft . . . ." The judge also explained that "an act is considered to be in the course of committing a theft if it occurs in an attempt to commit the theft, during the commission of the theft itself or '[i]n' immediate flight after the attempt or commission." And the charge defined theft accurately. Of course, there was no evidence that there was a threat of bodily harm during the course of theft because there was no completed theft at all.

Because defendant did not actually succeed in stealing any money, the first question the jury had to resolve to find defendant guilty of robbery was whether he attempted to commit a theft. Of course, a jury could infer such an attempt from defendant's conduct and his demand for money from the manager. To make that inference, however, the jury would have to consider and apply the relevant elements of the offense of attempt. Those elements are defined by N.J.S.A. 2C:5-1, in relevant part, as follows:

a. . . . A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

. . . .

(3) Purposely does . . . anything which, under the circumstances as a reasonable person would believe them to be, is an act . . . constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

b. . . . Conduct shall not be held to constitute a substantial step under subsection a(3) of this section unless it is strongly corroborative of the actor's criminal purpose.

In State v. Gonzalez, 318 N.J. Super. 527 (App. Div. 1999), abrogated on other grounds, State v. Hill, 199 N.J. 545, 566 (2009), the court was, as we are now, confronted with a plain error argument based on the trial court's failure to define attempt in accordance with the statute in a case in which the State had to prove robbery and there was no theft. Although the defendant confessed to the police, saying, among other things, that he placed the victim in a headlock and demanded "the money," id. at 532, 535, at trial, he denied any involvement in the criminal episode, saying that he just happened to be standing nearby.

We reversed the conviction because the jury was

never apprised that attempt requires purposeful conduct as compared to purposeful or knowing conduct, nor was the jury charged as to a "substantial step," or that a "substantial step" may be dispositive if "it is strongly corroborative of the actor's criminal purpose."

[Id. at 534 (citations omitted).]

One might argue "that it is difficult to explain why juries should be required to make a finding of what seems to be the obvious. The short answer is that there is simply no substitute for a jury verdict." Vick, supra, 117 N.J. at 291.

The State attempts to distinguish Gonzalez. First, it asserts that in Gonzalez "there was enough evidence, when cobbled together, to support a claim that the defendant tried to take money from the victim but that he did not have a weapon on his person at the time." The State then argues that "[b]ecause it was thus 'unclear' that a robbery actually occurred, State v. Farrad, [ 164 N.J. 247, 262 (2000)], the defendant was entitled to a charge on attempted theft." The State then notes there was

no conflicting evidence as to whether the masked man who entered the pharmacy was armed with a gun. In fact, the defendant never claimed otherwise. His only defense at trial was that the police arrested the wrong man; he never disputed that the victims were held up at gunpoint. Thus Gonzalez is readily distinguishable.

Farrad, the case to which the State refers above, has nothing to do with the issue before us. Rather, that case discussed the elements of the crime of attempted robbery, an entirely distinct concept having nothing to do with attempted theft as a basis for robbery. Farrad, supra, 164 N.J. at 261. In the instant case, as in Gonzalez, the primary defense was nonparticipation. More significantly, the opinion in Gonzalez did not turn on there being a factual question as to whether or when the perpetrator became armed; rather, it merely mentioned that during the attack a weapon was offered to the perpetrator. The point of Gonzalez is that plain error occurs when the State must prove attempt and the judge fails to charge the requisite elements.

The State does not argue that Gonzalez was wrongly decided, and we perceive no substantial difference between Gonzalez and the subject case. Therefore, we are obliged to reverse the judgment based on the jury verdict and remand that case for new trial. The judgments on the other indictments are affirmed.

Affirmed in part; reversed in part, and remanded.

 
 

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