STATE OF NEW JERSEY v. MILTON MUNROE

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-6014-06T4

A-6511-06T4

A-2131-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

MILTON MUNROE,

Defendant-Appellant/

Cross-Respondent.

__________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

ROLAND SIMEON,

Defendant-Appellant.

_________________________________

October 21, 2010

 

Submitted September 14, 2010 - Decided

Before Judges Parrillo, Yannotti and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-03-00429.

Yvonne Smith Segars, Public Defender, attorney for appellant/cross-respondent Milton Munroe (Alison Perrone, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant Roland Simeon (William Welaj, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent/cross-appellant (Simon Louis Rosenbach, Assistant Prosecutor, on the briefs).

PER CURIAM

 

In these back-to-back appeals consolidated for purposes of this opinion, co-defendants Milton Munroe and Roland Simeon appeal from their convictions, after jury trial, for second-degree robbery, N.J.S.A. 2C:15-1, and second-degree conspiracy, N.J.S.A. 2C:5-2, arising from separate instances on the same evening wherein two victims were attacked and robbed. For defendant Simeon, the court imposed two consecutive seven-year terms for the two robberies of which he was found guilty, subject to the No Early Release Act's (NERA) eighty-five percent parole ineligibility period, N.J.S.A. 2C:43-7.2, and merged the conspiracy conviction. For defendant Munroe, the court merged the conspiracy conviction with his singular robbery conviction, and sentenced him as a third-degree offender to a three-year term, subject to NERA. Appropriate fees and penalties were also imposed for both defendants. As noted, both defendants appeal. In addition, the State cross-appeals from the trial court's decision to downgrade Munroe's sentence to that of a third-degree offender. For the following reasons, we affirm both judgments of conviction, except the sentence imposed on Munroe, which we vacate and remand for resentencing.

According to the State s proofs, around 2:15 p.m. on January 20, 2006, then juvenile A.A., Munroe and brothers Bruno and Roland Simeon bought beer at a local liquor store in Edison and played football for about thirty minutes before going to the brothers' mother's home, where they played video games. Soon after, Mikiel Adl arrived at the house and the group retreated to the parking lot, where Adl suggested that the men commit a robbery. The others joined in this conversation.

The men all entered A.A.'s car and went to get more beer. On the way back from the liquor store, around 6:00 p.m., they spotted Christopher Wozniak and his girlfriend, Julia Carey, walking down Isabelle Street towards the Menlo Park Mall, where the couple intended to see a movie at the cinema. Wozniak and Carey, however, never reached the mall. As they were walking through the parking lot of a nearby Target, A.A.'s car approached them and stopped. A.A. pulled into a parking space and Adl and the Simeon brothers exited the vehicle.

Adl, a "white or Hispanic male . . . wearing a red hoodie

. . . and [holding] a can of beer," approached Wozniak and spoke to him as if Adl knew him. By then, all three men had surrounded Wozniak and Carey, and one of them called Wozniak "Chris." Adl gave Wozniak a hug and asked him where the "weed was at," to which Wozniak replied that he had "no idea" and "just got out of jail." When Wozniak extended his hand to one of the Simeon brothers to shake it, Adl punched him in the nose. Wozniak fell to the ground and the three men began kicking him, stopping only momentarily to demand his wallet. When Wozniak refused to surrender his wallet, the men resumed their attack. Eventually, Wozniak dropped his wallet on the ground.

At some point during the assault, Carey tried to intervene on behalf of her boyfriend; however, Roland Simeon pushed her against a nearby car and told her to "be cool." Someone, exiting either the apartment building or the car, approached the three men beating Wozniak. Noting the men's distraction, Wozniak and Carey seized the opportunity to run to the Target store a short distance away, where a security guard summoned an ambulance to take Wozniak, bleeding and in pain, to the hospital. When Wozniak arrived at the hospital at 8:30 p.m., his face and torso were bruised, he could not urinate, the middle finger of his left hand was broken, and he could not walk because of the pain. Medical personnel put a splint on the finger and conducted tests to determine the extent of his injuries.

Meanwhile, the robbers left the scene. They divided the money taken from Wozniak's wallet, threw the wallet out of the window of A.A.'s vehicle near Target, and returned to the Simeons' house, where they drank more beer in the parking lot. At that point, Adl said he wanted to go out to eat and also suggested committing another robbery, to which none of the men objected. The group drove to Burger King on Oaktree Road, after which they drove around until about approximately 8:00 p.m., when they spotted Vinodh Chandraskaran, who was walking home from the Metropark train station.

At Adl's direction, A.A. stopped the car and Adl, Munroe, and the Simeon brothers exited the vehicle. The men approached Chandraskaran and demanded his wallet. When Chandraskaran did not respond, they hit him and knocked him to the ground. They then took his wallet and cellular phone from his pocket before driving off to Taco Bell.

All five individuals were eventually apprehended. A.A.'s delinquency charge was resolved in juvenile court and he testified on behalf of the State at the joint trial of co-defendants Roland Simeon and Munroe. Bruno Simeon and Adl pled guilty and Adl testified on behalf of Munroe. Crediting the State's account, the jury convicted Roland Simeon of the two robberies and Munroe of one of them.

On appeal, both defendants argue, for the first time, that the court committed reversible error by inadvertently omitting a portion of the model jury charge on second-degree robbery referencing one of its requisite elements. In addition, defendant Simeon argues, also for the first time, that the court failed to instruct the jury on the limited admissibility of the guilty pleas by Adl, Bruno Simeon and A.A. Simeon also contends that the court erred in denying his mistrial motion and that his sentence is unduly excessive. Lastly, defendant Munroe argues that he was denied a fair trial by prosecutorial misconduct and willful failure to provide a summary of his statements against interest in discovery. We first address defendants' joint issue.

I.

The instant indictment charged defendants with alternative versions of second-degree robbery: the defendants were alleged to have used force (N.J.S.A. 2C:15-1(a)(1)); to have inflicted bodily injury (N.J.S.A. 2C:15-1(a)(1)); or to have placed the victims in fear of immediate, bodily injury (N.J.S.A. 2C:15-1(a)(2)). Defendants now complain for the first time that the court failed to adequately instruct as to the third alternative. We find no error, much less prejudicial error, in the court's jury charge.

When the judge charged the jury, he read the language of the robbery counts:

[I]n the course of committing a theft, the defendants used force upon [the victim] and/or inflicted bodily injury upon [the victim] and/or purposely put [the victim] in fear of immediate bodily injury.

 

The judge then gave the following charge on second-degree robbery:

Now the part of the statute on which this indictment is based reads as follows: A person is guilty of robbery if, in the course of committing a theft he, number one, knowingly inflicts bodily injury or uses force upon another person or purposely puts that other person in fear of immediate bodily injury.

 

So in order to find the defendant guilty of robbery the State is required to prove each of the following elements beyond a reasonable doubt: Number one, that the defendant was in the course of committing a theft. Two, that while in the course of committing the theft he knowingly inflicted bodily injury or used force upon another person or purposely put another person in fear of immediate bodily injury.

 

[(emphasis added).]

 

After providing definitions of "in the course of a theft," "theft," "purpose," and "bodily injury," the judge instructed:

In order to find the defendant guilty of robbery you must be unanimous that the defendant, either defendant[,] used force against[,] in Count 2[,] Vinodh Chandraskaran and[,] in Count 3[,] Christopher Wozniak. In other words, if you find that the defendant[,] used force but do not unanimously agree that he used force against Mr. Wozniak or Mr. Chandraskaran, then the State has failed to prove the existence of force beyond a reasonable doubt or defendant purposely put another in fear of immediate bodily injury.

 

[(emphasis added).]

 

Further, during jury deliberations, the jury asked for a definition of robbery as compared to theft. The trial court again clearly and plainly instructed the jury on this matter:

In order to find the defendant guilty of robbery you must be unanimous that the defendant used force, force against[,] in Count 2[,] Mr. Chandraskaran, [and in] Count 3[,] Christopher Wozniak. In other words, if you find that the defendant used force but do not unanimously agree that he used force against one of those or both of those victims, then the State has failed to prove the existence of force beyond a reasonable doubt or to find the defendant guilty you must be unanimous that the defendant purposely put another person in fear of immediate bodily injury. . . . And the phrase bodily injury means physical pain, illness or any impairment of the physical condition of another, although no bodily injury need to have resulted. The prosecution must prove that the defendant purposely put the victim in fear of such bodily injury.

 

The other thing is, or course, that he knowingly inflicted bodily injury or used force upon another person or purposely put the other person in fear of immediate bodily injury, so it is one of those three things or more than one[;] I guess there will be at least one of those three things unanimously.

 

[(emphasis added).]

We are satisfied from these multiple and repeated iterations that the jury was adequately and properly instructed as to all essential elements of second-degree robbery, including the "threatened another with or purposely put another in fear of immediate bodily injury" version of robbery. But even if the court's explanation of this third alternative was less than clear, we perceive no resultant prejudice to defendants. Here, there was sufficient evidence supporting alternative methods by which defendants committed second-degree robbery, either by inflicting bodily injury or knowingly using force upon the victim, and the jury obviously found defendants committed the requisite acts. We, therefore, fail to discern how defendants were prejudiced by a jury instruction that may not have otherwise clearly explained a third alternative by which those same acts of defendants constituted second-degree robbery. On the contrary, any such omission most likely would have worked to the advantage of defendants, not the State.

The harmlessness of the alleged error is perhaps best evidenced by defense counsel's complicity in the charge, as the failure to object suggests that, in context, the charge appropriately conveyed the necessary direction. State v. Wilbely, 63 N.J. 420, 422 (1973). Thus, "[b]ecause [the] defendant did not object to the jury charge before the jury retired to deliberate," this court should "reverse only if the failure to charge the jury" on the now-requested subject matter "was plain error 'clearly capable of producing an unjust result,'" State v. Noble, 398 N.J. Super. 574, 596 (App. Div.) (quoting R. 2:10-2), certif. denied, 195 N.J. 522 (2008), "such that a reasonable doubt is raised 'as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Brims, 168 N.J. 297, 306 (2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). And in determining plain error, "[t]he charge to the jury must be read as a whole

. . . ." State v. Adams, 194 N.J. 186, 207 (2008).

Thus, even assuming the jury charge may have been somewhat unclear as to the third alternative method of committing second-degree robbery, the error did not lead the jury to a result it otherwise might not have reached. There was ample evidence to support convictions for second-degree robbery based upon the force used and the infliction of bodily injury, such that the alternative charge for the "purposely put another in fear of immediate bodily injury" version of robbery was superfluous and any lack of clarity therein utterly harmless.

 

 

II.

Defendant Simeon asserts error in the trial court's failure to give a limiting instruction concerning Mikiel Adl's guilty plea and A.A.'s juvenile adjudication. Specifically, Simeon contends that while the court properly instructed on the effect of these adjudications on witness credibility, it failed to charge, in accordance with the revised model jury charges and State v. Stefanelli, 78 N.J. 418, 430-33 (1979), that they could not be used as substantive evidence of Simeon's guilt.

Because defendant did not object to the instruction at trial,1 we consider this issue under the plain error rule. R. 2:10-2. "Generally, a defendant waives the right to contest an instruction on appeal if he does not object to the instructions as required by Rule 1:7-2." Adams, supra, 194 N.J. at 206-07. Nevertheless, we may "reverse on the basis of unchallenged error if [we] find[] that the error was 'clearly capable of producing an unjust result.'" Id. at 207 (quoting R. 2:10-2).

"As applied to a jury instruction, plain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)). In this determination:

The charge to the jury must be read as a whole . . . . We note also that, "[a]lthough arguments of counsel can by no means serve as a substitute for instruction by the court, the prejudicial effect of an omitted instruction must be evaluated in light of the totality of the circumstances

-- including all the instructions to the jury, [and] the arguments of counsel."

 

[Adams, supra, 194 N.J. at 207 (quoting State v. Marshall, 123 N.J. 1, 145 (1991) (citations and internal quotations omitted), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).]

 

"However, because correct jury charges are especially critical in guiding deliberations in criminal matters, improper instructions on material issues are presumed to constitute reversible error." State v. Jenkins, 178 N.J. 347, 361 (2004) (citing State v. Jordan, 147 N.J. 409, 421-22 (1997)); see State v. Barden, 195 N.J. 375, 394 (2008) ("an erroneous charge will rarely stand on the ground that the error was harmless").

It has long been held that a trial judge should caution the jury "regarding the credibility of witnesses who may have a special interest in the outcome of the cause, which might lead to influencing their testimony, because of some involvement in the criminal situation out of which the indictment and trial of the defendant arose." State v. Begyn, 34 N.J. 35, 54 (1961) (citation omitted). More recently, the Court emphasized that a trial judge "should instruct the jury that it must carefully scrutinize the testimony of a co-defendant in light of the witness's special interest," Adams, supra, 194 N.J. at 208, "and in the context of his specific interest in the proceeding." Id. at 207 (quoting Begyn, supra, 34 N.J. at 54).

Here, the court did just that:

Now as judges of the facts you are to determine the credibility of the witnesses. In determining whether a witness is worthy of belief and, therefore, credible you may take into consideration the following: . . . [t]he witness['s] interest in the outcome of the trial . . . [t]he possible bias, if any, in favor of the side for whom the witness testified . . . [a]nd any and all other matters in the evidence which serve to support or discredit his or her testimony.

 

. . . .

 

All right, now you've heard testimony that . . . Mr. Mikiel Adl [has] previously been convicted of a crime or crimes. This evidence may be used only in determining the credibility or believability of the[] witness['s] testimony. A jury has a right to consider whether a person who has previously failed to comply with society's rules as demonstrated through a criminal conviction or convictions would be more likely to ignore the oath requiring truthfulness on the witness stand than a person who's never been convicted of a crime. You may consider in determining this issue the nature of the prior conviction or convictions and when they occurred. You're not, however, obligated to change your opinion as to the credibility of any of these witnesses simply because of a prior conviction or convictions. You may consider such evidence along with all of the other factors we previously discussed in determining the credibility of a witness.

 

Now also evidence has been produced to show that [A.A.] has previously been adjudicated a juvenile delinquent and is presently on deferred disposition. This evidence of this witness['s] present status does not have any bearing on the general credibility to be given his testimony. Rather, the evidence has been admitted to allow you to determine whether his testimony has been influenced and any possible bias, prejudice, interest or ulterior motive or specifically this evidence may be relevant to the question of whether testimony is influenced by a hope or expectation of favorable treatment.

 

[(emphasis added).]

 

We are satisfied that the trial judge adequately instructed the jury as to how to assess the credibility of all testifying accomplices.

The judge, however, must also warn the jury not to use the witness's plea of guilty as substantive evidence of a defendant's guilt. Adams, supra, 194 N.J. at 208; Stefanelli, supra, 78 N.J. at 430-33. This is because a defendant is entitled "to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else." Stefanelli, supra, 78 N.J. at 431 (citation omitted).

In the present case, while the trial judge instructed that Adl's guilty plea and A.A.'s juvenile adjudication may only be used in assessing the witnesses' credibility, he did not additionally warn against considering these dispositions as substantive evidence of defendant Simeon's guilt. Given defense counsel's acquiescence in the charge, however, we consider whether the error was clearly capable of bringing about an unjust result.

We find no plain error in the omission. On this score, Adams, supra, is instructive. There, on back-to-back appeals with issues similar to those presented here, the defendants argued, among other things, that the trial court should have instructed the jury that a testifying co-defendant's guilty plea cannot be used as substantive evidence of his guilt. 194 N.J. at 206-07. Analyzing the issue under the plain error standard, the Court found that:

In the present case, the trial court should have instructed the jury to carefully scrutinize [the] co-defendant['s] . . . testimony, and not to consider his guilty plea as substantive evidence of defendants' guilt but only in assessing [the co-defendant's] credibility. Defendants, however, neither requested those instructions nor did they object to the instructions that were given. The question then is whether in the context of the trial, the error was clearly capable of bringing about an unjust result.

 

We find no plain error in the court's failure to give a cautionary instruction on the allowable uses of [the co-defendant's] guilty plea and his testimony. At trial, defense counsel thoroughly cross-examined [the co-defendant] to challenge his credibility and [the co-defendant's] lack of credibility was a major theme in closing arguments for the defense, which asserted that [the co-defendant] was a liar. The detailed testimony of [the co-defendant] independently established his guilt of the crime and, therefore, his guilty plea added little weight to that testimony. Further, the trial court gave the standard charge on credibility. Under those circumstances, we are satisfied that "the error did not have the clear capacity to produce an unjust result and that it had a minimal effect on the outcome of trial."

 

[Id. at 208-09.]

 

In the present case, as noted, the jury was expressly advised that Adl's guilty plea and A.A.'s juvenile adjudication may only be used in assessing their credibility. Moreover, the trial court gave the standard charge on credibility. Further, as in Adams, both Adl and A.A. were subject to thorough questioning in which their credibility and potential bias were explored. For instance, the jury was informed during cross-examination that A.A., who was treated as a juvenile, could have been prosecuted as an adult; that had he been so prosecuted, he would have faced a maximum term of twenty years with a seventeen-year period of parole ineligibility; and that the State recommended a probationary sentence.

Both defense attorneys emphasized in their summations the leniency that A.A. was accorded as a reason for not crediting his testimony. Additionally, the jury was told that Adl, who was facing a twenty-year sentence, negotiated a favorable plea to a three-year term with an eighty-five percent period of parole ineligibility. Moreover, one of the negotiated terms was that Adl provide a statement to investigators and another was the dismissal of a different indictment. Nevertheless, Adl did not testify as a prosecution witness. Rather, he was called by Munroe. Simeon's counsel labeled Adl "unreliabl[e]," and the trial prosecutor devoted a substantial part of her summation to discrediting Adl's testimony. Indeed, witness credibility issues were discussed at length in the parties' closing arguments.

Equally significant, A.A.'s and Adl's detailed testimonies independently established their guilt and, therefore, their guilty pleas added little weight to that testimony. And finally, as noted, the trial court gave a jury charge that included a clear and thorough discussion of credibility and bias. Under the circumstances, we are satisfied that "the error did not have the clear capacity to produce an unjust result and that it had a minimal effect on the outcome of trial." Stefanelli, supra, 78 N.J. at 437.

III.

Simeon next contends that the so-called "tainted" in-court identifications by Wozniak and Carey were so prejudicial that a mistrial, rather than simply striking them from evidence, was compelled. We disagree.

By way of background, both Wozniak and Carey identified Simeon as one of the robbers at the end of their respective trial testimonies. On cross-examination, however, both acknowledged seeing Simeon in court at arraignment, hearing his name called, and matching the name to defendant's face. Consequently, the next day, Simeon's counsel objected to the witnesses' in-court identifications and requested either that they be stricken or that the judge issue a cautionary instruction. After learning of the court's decision to tell the jury to disregard the in-court identifications, Simeon's counsel moved for a mistrial, which the court denied, reasoning:

[T]here is plenty of other independent proof that Roland Simeon was with four other people during the several hours on January 20, 2006, testimony of [A.A.] that he was there, Mr. Adl was there. He was a defense witness for Mr. Milton Munroe. The statement that Mr. Roland Simeon gave which was admitted into evidence and so I think that the jury will listen to the instructions of the [c]ourt.

 

In striking the identifications, the court instructed the jury:

Now any testimony that I may have had occasion to strike is not evidence and shall not enter into your final deliberations and must be disregarded by you. This means that even though you may remember the testimony you're not to use it in your discussions or deliberations.

 

Now one thing I am striking from the evidence is the testimony of Christopher Wozniak and Julia Carey when they identified Mr. Roland Simeon in court. We call that in[-]court identification and the reason I'm striking that is because you will recall that at a status conference weeks before the trial that they received a notice and they come to court and they saw [Simeon] outside of courtroom 502, and, therefore, their testimony I am striking because I am not satisfied that they were able to testify from their memory of what they saw on the evening of January 20, 2006, so I am striking that. And now, not anything about any description they gave or anything like that, but only their in[-]court identification the day they testified that is stricken and that is not evidence, that shall not enter into your final deliberations, it must be disregarded by you. And even though you may remember that in[-]court identification and the testimony surrounding it you're not to use it in your discussions or your deliberations in any shape, manner or form. It is stricken.

 

We find this instruction sufficiently curative so as to eliminate any possible prejudice from the witnesses' in-court identifications. A mistrial is an extraordinary remedy and a request for such should be granted only rarely. See State v. Rechtschaffer, 70 N.J. 395 (1976). The decision to grant a mistrial is entrusted to the sound discretion of the trial court, State v. DiRienzo, 53 N.J. 360, 383 (1969), and only to prevent an obvious failure of justice. Rechtschaffer, supra, 70 N.J. at 406. We defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence. State v. Winter, 96 N.J. 640, 647 (1984). Thus, we will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice. State v. Harvey, 151 N.J. 117, 205 (1997) (citing DiRienzo, supra, 53 N.J. at 383), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

We discern no abuse of discretion here. Counsel vigorously cross-examined Wozniak and Carey and demonstrated that their identifications might be suspect. On the other hand, there was ample independent proof to support the jury's verdict. Carey knew Bruno and Adl, and her identification of Adl reinforced Adl's own testimony that he was there. In addition, A.A. testified as a prosecution witness. We, therefore, perceive no real danger that defendant Simeon would have been misidentified as being a participant in this robbery. More important, the court strongly and plainly admonished the jury to disregard the witnesses' in-court identifications. Jurors, of course, are presumed to follow the court's instructions. State v. Winder, 200 N.J. 231, 256 (2009) (citing State v. Manley, 54 N.J. 259, 270 (1969)). Under the circumstances, the denial of defendant Simeon's motion for a mistrial was proper.

IV.

Defendant Munroe argues that a mistrial should have been granted because the State failed to disclose, in advance of trial, certain incriminating out-of-court statements he allegedly made to A.A. We disagree.

By way of background, A.A. was asked on direct examination whether defendant Munroe said anything about the robberies on January 20, 2006. The prosecution witness answered that, after the first robbery, he was really nervous and feared being caught, but Munroe assured him that they would not be caught because Wozniak and Carey had not seen A.A.'s car. When defense counsel complained that this comment was not provided in discovery, the prosecutor explained that she had only interviewed A.A. for the first time the previous day, as he was attending college out-of-state. Counsel then requested a mistrial, which the trial court denied, opting instead to strike the statement and direct the jury to disregard it, instructing:

All right, ladies and gentlemen, the last question and answer that was posed to this witness you're to completely put out of your mind. It is not evidence. You can't consider it. You can't talk about it. It is not evidence and it is struck from the record. Do you understand it, ladies and gentlemen? Thank you very much.

 

In State v. Blake, 234 N.J. Super. 166 (App. Div. 1989), a prosecutor's willful failure to advise the defendant of oral admissions allegedly made by him, which were used on rebuttal after the defendant testified, was held to violate the State's discovery obligations under Rule 3:13-3(a)(2) and (7), and so prejudicial as to deprive the defendant of a fair trial, particularly in view of other discovery violations that had occurred. See also State v. Clark, 347 N.J. Super. 497, 507-08 (App. Div. 2002) (new trial ordered where police failed to disclose to the defense, for over two years, the existence of an eyewitness, the prosecutor refused to provide the eyewitness's address to the defense, and the trial judge failed to take any ameliorative action). On the other hand, under Rule 3:13-3(g), "[a]n inadvertent prosecutorial error in withholding discovery will not, if harmless, result in penalty or impugn the validity of the conviction." Pressler, Current N.J. Court Rules, comment 7.1 on R. 3:13-3(g) (2010) (citing State v. Koedatich, 112 N.J. 225, 319 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v. Zola, 112 N.J. 384, 416-19 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); State v. Martinez, 370 N.J. Super. 49, 56 (App. Div.), certif. denied, 182 N.J. 142 (2004)).

Here, a mistrial was not warranted. The challenged comment was superfluous, following a long and complete description by A.A. of the robberies and the robbers, wherein he repeatedly implicated defendant Munroe. Moreover, the delayed disclosure was not a purposeful tactic, but simply the result of the witness's presumed unavailability earlier in time. Lastly, the judge issued a clear curative instruction striking the challenged statement and we presume the jurors followed that direction. We, therefore, find no abuse of discretion in the denial of Munroe's mistrial motion.

V.

Defendant Munroe also argues that the prosecutor's summation improperly infringed upon his right not to testify. This contention is without merit.

Adl testified on Munroe's behalf that Munroe did not assist in the Wozniak robbery, looking as though he wanted to be elsewhere and not part of the criminal undertaking. In her summation, the prosecutor questioned this perception, arguing:

You heard testimony from [A.A] as well as Mikiel Adl, both of them thought that at that time, at some point in time Milton Munroe used to live over there in an apartment complex near Roosevelt Park. You will see on the maps Roosevelt Park is right next to Menlo or that at least that is in some of the testimony too right next to Menlo Park right next door. You mean to tell me [Munroe] couldn't get out of the car at that point in time? You mean to tell me that . . . nobody else could have gotten out, walked away? For two hours they ride around and for someone who did not want to have any part at all, no part, he sure is, meaning Milton Munroe, sure is hanging out with the rest of the crowd. . . . During the course of this evening I am sure they stopped at a stop light, stop sign somewhere. Let me out, couldn't let me out. Everybody said, you know, what about that? Any threats made? No. And any weapons in the car? None that we have heard of. And know what was amazing is, I believe it was actually [Munroe's counsel] who was asking [A.A.] those questions, well, did you have a gun to your head? Did you have a knife to your throat? Were you threatened? It is your car, you could have left[,] right? Well, what about those same questions apply to [Munroe]? Did he have a gun to his head? Did he have a knife to his throat? Was he threatened?

 

[(emphasis added).]

 

Defendant now argues that the prosecutor's request for the jury to "apply" defense counsel's questions of A.A. to defendant abridged his right to remain silent. We disagree and view the challenged remark simply as a comment on the lack of any evidence to support Adl's description of defendant as seemingly wanting to be elsewhere. As the prosecutor pointed out, defendant had opportunities to be elsewhere, but seized none of them. Moreover, there was no evidence that anyone forced defendant to remain in the car or with the group. We fail to see how the prosecutor's fleeting commentary - responsive to questions posed by defense counsel to another witness (A.A.) - implicated defendant's failure to testify.

VI.

Lastly, Simeon challenges his sentence as unduly excessive. We disagree.

In sentencing Simeon, the trial judge found applicable the following aggravating factors: three (risk of recidivism), N.J.S.A. 2C:44-1(a)(3); six (the seriousness and extent of a defendant's prior criminal record), N.J.S.A. 2C:44-1(a)(6); and nine (the need to deter the defendant and others), N.J.S.A. 2C:44-1(a)(9). Finding that the aggravating factors outweighed the non-existent mitigating factors, the court imposed, as to the two robbery charges for which defendant was convicted, two consecutive prison terms of seven years each, subject to NERA's eighty-five percent parole ineligibility period, and merged count one's conspiracy conviction into the robbery convictions.

The record contains substantial, credible evidence, particularly Simeon's extensive criminal record, that supports the trial court's finding of aggravating factors and the lack of any mitigating factors. Although defendant contends that he "had essentially led a law abiding life for a significant period of time," the record belies that assertion. According to the pre-sentence report, defendant received two five-year terms for assault in 1998 and was paroled in April 2002. He violated the terms of his parole in March 2004, was re-incarcerated, and was not released again until March 2005. Thus, when defendant robbed Wozniak and Chandraskaran, he had been out of jail for only ten months, and in the previous nine years, defendant had been in jail all but two years and ten months.

The record also supports imposition of consecutive terms. State v. Abdullah, 184 N.J. 497, 513-14 (2005); State v. Yarbough, 100 N.J. 627, 637 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), superseded in part by statute, N.J.S.A. 2C:44-5, as recognized by State v. Craig, 168 N.J. 413 (2001). According to Yarbough, supra, consecutive sentences may be appropriate when the charges constitute separate offenses, such as when they involve multiple victims, separate acts of violence, independent objectives, or separate times and places. 100 N.J. at 643. Here, the Yarbough factors militate in favor of consecutive sentences. Simeon's crimes did not involve a single episode of aberrant behavior, but rather two independent violent acts separated by time and place that involved multiple victims. See State v. Cassady, 198 N.J. 165, 181 (2009) (adopting the trial court's reasoning that two crimes, separated by thirty minutes and two miles, were sufficiently independent of one another to satisfy the Yarbough factors).

Under the deferential abuse of discretion standard, it cannot be said that the trial court's sentencing decision was "so wide of the mark as to require its modification by this Court." State v. Carey, 168 N.J. 413, 431 (2001) (quoting State v. Peace, 63 N.J. 127, 129 (1973)).

VII.

The State cross-appeals from that portion of defendant Munroe's judgment of conviction sentencing Munroe, as a third-degree offender, to a three-year term of incarceration subject to NERA's eighty-five percent parole disqualifier. In meting out this sentence, the judge reasoned:

This is a trial here. There is a presumption for incarceration. Second degree offense.

 

Aggravating factor nine, the need to deter this defendant and others from violating the law.

 

. . . He does have a very minor [criminal] record. So it's six.

 

. . . .

 

Now, eight, with all these folks here and his indication of remorse, he still maintains his innocence as to this particular offense, which he has a right to do. But he's very remorseful about that night and what happened to the first victim and the second victim. And I think that hopefully . . . his conduct was the result of circumstances unlikely to reoccur.

 

And that's because you had here a 17 year old kid, who was driving a car sort of at the direction of older kids. You had this guy Adl and then you had the Simeon brothers. One was . . . what, over like 26 or 27, right? And so . . . you get a group of people like this together, it's called psychological causation. You do something you normally wouldn't do. But you do it because others are doing it. So you saw the first attack on [Christopher Wozniak].

 

You saw that. You stayed in the car. And then the second one there's pressure for you to be one of the guys and take part in this very unlawful conduct. . . .

. . . .

 

Seven, he has . . . he's got . . . No. 10, amenable to probationary treatment.

 

And I'm going to give him No. 6, which is there will be restitution.

 

. . . .

 

Now, there's no doubt . . . the proofs here were overwhelming that Milton Munroe was part of the gang that attacked Mr. Chandraskaran.

 

And it was overwhelming that Mr. Adl perjured himself. And that, of course, was offensive to the Court, offensive to the prosecutor. We don't like people coming in here to court and lying.

 

And of course, you had a right to call him as a witness. And whether or not you knew he was lying, I'm not going to even get into that because you have your own constitutional rights . . . .

 

And the proofs were that the white kid was driving the car and Adl . . . was the lookout. And he saw . . . there [were] three African-American males that attacked him. And the only three people left were the three African-American males. And Mr. Milton Munroe was one of those three. So by process of elimination the proofs were overwhelming.

So I find that the mitigating factors because of your age[,] you are now 23. At the time of the offense you had just turned 22 . . . .

 

. . . .

 

I also want to note that the brains of people usually don't mature until you're 25 years old. So your brain is still . . . maturing and doesn't become a totally mature brain until like age 25. It depends on the person . . . .

 

So I'm finding the mitigating outweigh the aggravating . . . .

 

. . . .

 

. . . The prosecutor can appeal my sentence because I am sentencing you to one degree lower than what you've been convicted of

. . . .

 

So the prosecutor's going to confer with her superiors over in the Prosecutor's Office. And they will decide whether they want to appeal my sentence, my giving you three years as opposed to giving you five years or five or more years. I was going to give you five years. I find it's appropriate to give you the three years.

 

Furthermore, in the judgment of conviction, the court noted:

There is a presumption for incarceration.

 

As to Aggravating Factors: the extent of the Defendant's prior criminal record and the seriousness of the offenses of which he has been convicted [N.J.S.A. 2C:44-1(a)(6)]; the need for deterring the Defendant and others from violating the law [N.J.S.A. 2C:44-1(a)(9)].

 

As to Mitigating Factors: the Defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service [N.J.S.A. 2C:44-1(b)(6)]; the Defendant's conduct was the result of circumstances unlikely to recur [N.J.S.A. 2C:44-1(b)(8)], the character and attitude of the Defendant indicate[s] that he is unlikely to commit another offense [N.J.S.A. 2C:44-1(b)(9)]; the Defendant is particularly likely to respond affirmatively to probationary treatment [2C:44-1(b)(10)]. The Court is clearly convinced that the Mitigating factors substantially outweigh the aggravating factors and the interest of justice demands that the Court sentence the Defendant to an appropriate three year state prison sentence (with NERA and three years of parole supervision) which is one degree lower.

 

N.J.S.A. 2C:44-1f(2) provides that where a sentencing court "is clearly convinced that the mitigating factors substantially outweigh the aggravating factors" and the "interest of justice demands," a court may sentence a defendant who had been convicted of a first or second degree crime to a term appropriate to an offense one degree lower. In addition to requiring a court to consider general sentencing principles - namely that the sentence reflect the Legislature's intention that the severity of the crime now be the single most important factor in the sentencing process - "a court must consider whether there is a compelling reason to downgrade defendant's sentence in the interest of justice under section 44-1f(2)." State v. Megarel, 143 N.J. 484, 501 (1996).

The decision to downgrade a defendant's sentence "in the interest of justice" should be limited to those circumstances in which defendant can provide "compelling" reasons for the downgrade. These reasons must be in addition to, and separate from, the "mitigating factors which substantially outweigh the aggravating factors," that the trial court finds applicable to a defendant under the first prong of section 44-1f(2).

 

[Id. at 501-02.]

Not only must the trial court set forth its reasons why the interest of justice demands a downgrade, but must also explain why sentencing for the particular offense for which the defendant was convicted is not a more appropriate sentence than a downgraded sentence under N.J.S.A. 2C:44-1f(2). Id. at 502.

In State v. Lebra, 357 N.J. Super. 500, 514 (App. Div. 2003), the trial judge, in sentencing the defendant, found that aggravating factors nine and six applied, but that mitigating factors seven, eight, nine, and eleven also applied. Based on those findings, "the trial court concluded that the mitigating factors substantially outweighed the aggravating factors and that it would sentence defendant as a third-degree offender." Ibid. Finding this "an insufficient basis to downgrade an offense for sentencing purposes," we held that "[t]he analysis

. . . was clearly insufficient. It is not enough to say that the 'interest of justice' demanded that defendant be sentenced within a third-degree range; the trial court was obligated to explain how it reached that conclusion." Ibid.

Here, as in Lebra, supra, the trial court at defendant's sentencing summarily stated that the mitigating factors outweighed the aggravating factors and offered no explanation for why the "interest of justice" demanded that defendant's offense be downgraded. While the judgment of conviction mimics the correct statutory standard, it too fails to enunciate any compelling circumstances justifying the downgrade. Absent is any articulation of the reasons why the interest of justice demanded such lenity or any analysis as to why a sentence at the lower range of the second-degree crime of which defendant was convicted was not a more appropriate sentence.

In addition to not detailing its rationale for the downgraded sentence, the court misapplied two mitigating factors: the defendant's youth and his amenability to probation. Of the thirteen mitigating circumstances set forth in N.J.S.A. 2C:44-1 that a court may properly consider in sentencing, youth is not listed. Moreover, recently our Supreme Court explicitly rejected youth as a mitigating factor. State v. Bieniek, 200 N.J. 601, 610 n.1 (2010). The court's conclusion that Munroe is amenable to probation is similarly misplaced. N.J.S.A. 2C:44-1(d) mandates that a person convicted of a first- or second-degree offense, like Munroe, faces presumptive imprisonment. Where imprisonment is presumptive, a defendant's amenability to probation is inapplicable.

The misapplication of these two mitigating factors and the failure to articulate adequate reasons for the sentencing downgrade compel us to vacate Munroe's sentence and remand the matter for resentencing.

D

efendant Simeon's judgment of conviction is affirmed. Defendant Munroe's sentence is vacated and the matter is remanded for resentencing in accordance with this opinion. In all other respects, Munroe's judgment of conviction is affirmed.

1 Although Simeon's counsel was not as vocal as Munroe's counsel in his opposition to the charge now requested, he was given two opportunities to request it after the judge first raised the issue, initially asking for the charge and then retracting his request. Indeed, the judge decided to omit that portion of the charge, which decision is now challenged on appeal, only after Simeon's counsel expressly requested that the instruction not be given.