STATE OF NEW JERSEY v. JEFFREY AYERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0372-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY AYERS,

Defendant-Appellant.

_________________________________

May 20, 2011

 

Submitted May 2, 2011 - Decided

 

Before Judges Lisa, Reisner and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 07-08-3055 and 07-09-3331.

 

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

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jeffrey Ayers appeals from his conviction for first-degree murder, N.J.S.A. 2C:11-3a; robbery, N.J.S.A. 2C:15-1; conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He also appeals from the sentence imposed: an aggregate thirty-five years in prison with a thirty-year parole bar.1

On this appeal, defendant claims that: the indictment should have been dismissed because the State failed to present the Grand Jury with exculpatory evidence; the statements to the police of a witness, Jocelyn Brooks, constituted inadmissible hearsay; over defense counsel's objections, the trial court should have sua sponte charged the jury on aggravated manslaughter and manslaughter as lesser included offenses of murder; the trial court gave insufficient instructions on Brooks' prior consistent statement and gave inadequate instructions on felony murder; and the sentence is excessive. Finding no merit in any of these contentions, we affirm.

I

 

In summary, this is what happened. On the evening of February 28, 2007, Quenting Scott Lacewell (Lacewell or the victim), was shot near Fifteenth Avenue and Bruce Street in Newark. Shortly after the shooting occurred, the victim was found a few blocks away by an off-duty East Orange police officer named William Rowe, who happened to be driving by and stopped to give assistance. Before the victim died, he twice told Rowe that "Al-Barr's son" shot him. However, the police located two eyewitnesses, Jocelyn Brooks and Rosalyn Williams, who both identified defendant as the shooter. The State also presented evidence that, shortly after the shooting, defendant was in possession of the victim's cell phone and allowed a friend to make calls from that phone.

This was the most pertinent trial testimony. Between 9:30 p.m. and 10:00 p.m. on the evening of the shooting, Brooks saw Lacewell driving his car and asked him for a ride home. Brooks had known Lacewell since 1999, when she met him in a substance abuse recovery program. However, on that evening, they both decided to purchase cocaine. Another woman, whom Brooks did not recognize, was seated in the rear passenger seat. That woman, Rosalyn Williams, had known Lacewell for at least thirty years.

Lacewell drove Brooks to her apartment on Bruce Street. He parked his car on Bruce Street, between Fourteenth Avenue and Fifteenth Avenue, on the opposite side of the street from Brooks's apartment. According to Brooks, there were "a couple of [young] guys" between the ages of eighteen and twenty-two standing around Lacewell's parked vehicle. She recognized one of them as "Tank" (Antonio Lane). The other young men included Al-Barr Edrington, his brother Al-Meer Edrington, and Tyrese Webb. The Edrington brothers' father was known as Al-Barr, and the son who had the same name was sometimes known as "little Al-Barr." The younger Al-Barr Edrington, an African-American male, was tall and around twenty-one or twenty-two years of age, according to Williams. He lived on Brooks's street in Newark. Williams testified that Lacewell knew the elder Al-Barr and his sons well because Lacewell grew up with the family in the same neighborhood.

After Lacewell briefly spoke with Tank, Brooks and Lacewell walked some distance away and purchased cocaine from someone other than Tank, while Williams remained in the car. Brooks testified that as she and Lacewell walked back to Lacewell's car, "a tall, thin, dark-skinned" man armed with a gun, with a black hoodie tied tight to his face, approached Lacewell, demanding that Lacewell give him "whatever he had." In her trial testimony, Brooks stated that she "thought" that the man who approached Lacewell was defendant, whom she called "Jeff," but she was not "100 percent sure" because she was "in shock" and "under the influence" at the time. When asked whether the person she had previously identified to the police as "Jeff" was present in court, Brooks responded "[n]o."

According to Williams, the armed man was tall and dark-skinned with a blue hoodie over his head. On direct examination, she testified that she only saw the left side of the man's face and his eyes while she was in the car waiting for Brooks and Lacewell to return. She also saw him running through the yard behind Brooks's apartment after the shooting. On cross-examination, she also testified that she "got a good look at" the gunman as he urinated against a wall while she waited in the car.

According to Brooks and Williams, after confronting Lacewell outside the car, defendant dragged him into an alleyway. Lacewell "sounded scared" and asked "[w]hy are you doing this?" Meanwhile, the man whom Brooks identified as Tank tried to force his way into Lacewell's car on the front passenger side, asking Brooks "[w]here the shit at?" Williams testified that he asked "where the gun is," but she had never seen a gun in the car. He then went to the back of the car, and Williams got out. He searched her for a gun, but found nothing.

Shortly after Tank searched the car, Lacewell broke away from defendant and ran out of the alley towards Fifteenth Avenue. Williams saw defendant chase Lacewell and trip him. According to Williams, when Lacewell fell, defendant stood over him, pointing a gun at him and attempting to shoot, but the gun did not fire. Lacewell then got up and started running again, with defendant chasing him. Williams and Brooks heard "at least" three gun shots. Williams heard Lacewell "holler" and knew he had been hit.

Brooks and Williams ran to the back entrance of Brooks's apartment. As they headed for the steps to the apartment, Williams, who was approximately thirty-five feet from defendant, saw him running past Brooks's apartment, down Fifteenth Avenue. The two women entered Brooks's apartment, and about fifteen minutes later, Williams went home. Neither Brooks nor Williams called the police.

As discussed later in this opinion, Brooks, who knew and liked defendant and lived in his neighborhood, was equivocal in her trial testimony. On the other hand, Williams, who lived elsewhere and had never seen defendant before the night of the shooting, testified without hesitation that defendant was the shooter. Williams, who knew Al-Barr and his son "little Al-Barr," also testified unequivocally that Al-Barr's son was not the person who shot Lacewell.

At approximately 11:00 p.m., William Rowe was driving eastbound on Springfield Avenue towards downtown Newark. He saw Lacewell lying in the road, thought he had been hit by a car, and approached him. Lacewell told Rowe that "he had been shot two or three times in the side and the back." Another man, named Larry, came upon the scene, and Rowe instructed him to call 9-1-1 and request a medical intensive care unit. While Larry called 9-1-1, Rowe asked Lacewell who had shot him, to which Lacewell responded "Al-Barr's son." Rowe gave his contact information to the Newark police upon their arrival at the scene.

Lacewell subsequently died from "a gunshot wound to the back," which perforated an artery in his upper right arm. An expert forensic pathologist testified that no gunshot powder was found on Lacewell's clothing, indicating a "distant gunshot wound," "beyond three feet."

At approximately 11:15 p.m., detectives Richard Warren, of the Newark Police Department, and Steve Roberts, of the Essex County Prosecutor's Office, responded to the scene. Lacewell's body had already been removed. Roberts saw a blood trail beginning at Bruce Street and Fifteenth Avenue. Also on Bruce Street, Roberts found spent bullet shell casings "spaced apart" and "a live round" of ammunition. A ballistics analysis of the spent shell casings concluded that all five bullets were fired from the same .40 caliber handgun, and the live round of unfired ammunition was most likely for the same weapon.

Jaquetta Britton also testified for the State. Sometime after 10:30 p.m. on the night of the shooting, defendant arrived at the apartment of Britton's aunt on Bedford Street. Britton asked to use a cell phone that defendant was holding in his hand, and defendant let her use it. While Britton had the phone, it received incoming calls that the caller ID feature identified as "wifey." Although defendant told Britton not to answer the phone, she answered it once, but hung up. The State introduced evidence that the caller was Lacewell's wife, and the phone belonged to Lacewell.

The defense at trial was mistaken identity--that one of Al-Barr's sons was the shooter, not defendant. One of defendant's friends, Darnell Bronson, testified that defendant was with him at the time of the shooting.

Defendant also presented character witness testimony from two of his former high school football coaches and teachers. One former coach described defendant as a peaceful, law-abiding, non-violent, good young man who was trying to get a football scholarship to college. The other coach, who also taught defendant physical education and health, likewise described him as peaceful, law-abiding, and non-violent.

 

II

On this appeal, defendant presents the following points for our consideration:

POINT I: THE INDICTMENT SHOULD HAVE BEEN DISMISSED BECAUSE THE PROSECUTOR'S GRAND JURY PRESENTATION DEPRIVED DEFENDANT OF HIS RIGHT TO INDICTMENT.

 

POINT II: THE ADMISSION OF JOCELYN BROOKS'S RECORDED AND WRITTEN STATEMENTS TO LAW ENFORCEMENT DETECTIVES AND RECORDED STATEMENT TO KARL RYANS WAS PRECLUDED BY THE HEARSAY RULE.

 

POINT III: THE TRIAL COURT ERRED BY NOT CHARGING AGGRAVATED MANSLAUGHTER AND MANSLAUGHTER AS LESSER-INCLUDED HOMICIDE OFFENSES OF MURDER. (Not Raised Below)

 

POINT IV: THE COURT ERRONEOUSLY FAILED TO INSTRUCT THE JURY ON HOW IT COULD CONSIDER JOCELYN BROOKS'S PRIOR CONSISTENT STATEMENT TO THE GRAND JURY AND PROVIDED INSUFFICIENT INSTRUCTIONS ON FELONY MURDER. (Not Raised Below)

 

POINT V: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

 

A.

 

Defendant first contends that the indictment should have been dismissed because the State withheld exculpatory evidence. We find no abuse of discretion in the trial court's decision to deny that motion. State v. Hogan, 144 N.J. 216, 229 (1996).

These are the most pertinent facts. The case was presented to the Grand Jury on September 21, 2007. At that time, the State presented testimony from two eyewitnesses, Roslynn Williams and Josalyn Brooks. Based on a photo array, Williams identified defendant as the shooter, although she was not "100 percent" sure of the identification. Brooks testified that the shooter was someone she knew as "Jeff." Brooks had picked out a photo of defendant from an array that police showed to her and had identified him as the shooter. And the State presented hearsay testimony from a Prosecutor's Detective that a third eyewitness had identified defendant as the shooter.2 The State also presented evidence that, after the murder, defendant had the victim's cell phone in his possession. The Grand Jury returned an indictment.

Defendant filed a motion to dismiss the indictment, contending that the State should have presented to the Grand Jury the recording of the 9-1-1 call, in which Rowe can be heard repeatedly asking the victim who shot him, and the victim is heard responding "Albar [Al-Barr's] son."

There was no dispute that the assistant prosecutor did not listen to this tape, or interview Rowe, until after the case was presented to the Grand Jury. However, defendant contended that if the State had "properly investigated this case before presenting it to the grand jury, this information could have been presented . . . because it is clearly exculpatory." In response, the prosecutor argued that the victim was shot in the back as he was fleeing and therefore was not in a position to know for sure who shot him, and that the evidence was not clearly exculpatory because three eyewitnesses identified defendant as the shooter.

Relying on Hogan, supra, 144 N.J. 216, and State v. Cook, 330 N.J. Super. 395 (App. Div.), certif. denied, 165 N.J. 486 (2000), the trial judge concluded that the information was not clearly exculpatory, because there were witnesses who identified defendant as the shooter. He also reasoned: "To require the grand jury to consider additional statements of the victim and then to weigh the two sets of the evidence would be akin to turning the grand jury into [a] deliberative body[,] a role which is more properly served by a petit jury." He also considered that the 9-1-1 tape was not actually within the prosecutor's knowledge at the time the case was presented to the Grand Jury.

On this appeal, defendant once again argues that the victim's statement was clearly exculpatory and should have been presented to the Grand Jury. We disagree, substantially for the reasons stated by the trial judge. At most, the victim's statement contradicted that of the eyewitnesses who identified defendant as the shooter. "[T]he exculpatory testimony of one eyewitness is not 'clearly exculpatory' if contradicted by the incriminating testimony of a number of other witnesses." Hogan, supra, 144 N.J. at 238; Cook, supra, 330 N.J. Super. at 410-11.

Finally, even if there was error in the Grand Jury proceeding, the petit jury's finding of guilt rendered the error harmless. See United States v. Mechanik, 475 U.S. 66, 70, 106 S. Ct. 938, 941, 89 L. Ed. 2d 50, 56 (1986); Cook, supra, 330 N.J. Super. at 411; State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).

B.

 

In his Points II and IV, defendant argues that Brooks' prior audio recorded statements, identifying defendant as the shooter, were not sufficiently reliable to qualify as prior inconsistent statements under N.J.R.E. 803(a)(1)(A); that they were not inconsistent with her trial testimony; that the prosecutor elicited testimony not justified under the rule of completeness; and that the trial judge did not instruct the jury as to the proper use of Brooks' prior consistent Grand Jury testimony. We find no merit in any of these arguments.

i.

N.J.R.E. 803(a)(1) provides that, notwithstanding the general rule against the admissibility of hearsay, N.J.R.E. 802, when a witness testifies at trial, a prior inconsistent statement made by that witness is admissible. "However, when the statement is offered by the party calling the witness," it is not admissible unless it was given under oath at a formal proceeding, N.J.R.E. 803(a)(1)(B), or it "is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability," N.J.R.E. 803(a)(1)(A).

To determine the statement's "reliability," the trial court must hold an N.J.R.E. 104(a) hearing to consider the following factors:

(1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence.

 

[State v. Gross, 121 N.J. 1, 10 (1990) (quoting State v. Gross, 216 N.J. Super. 98, 109-10 (App. Div. 1987)).]

 

We review the judge's determination to admit or exclude evidence for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). And we defer to the judge's factual findings so long as they are supported by sufficient credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We owe particular deference to the judge's evaluation of witness credibility. Id. at 474. Against that legal backdrop, we review each of the defendant's arguments.

ii.

On March 3, 2007, a few days after the shooting, Brooks gave an audiotaped statement to the police in which she unambiguously identified defendant as the shooter. Later, at the trial, she waffled on the identification, claiming that she previously "thought" the shooter was Jeff, but now was unsure who the shooter was. In response to the State's application to confront Brooks with the audiotape in front of the jury, as a predicate to introducing the tape in evidence as a prior inconsistent statement, the judge held an N.J.R.E. 104(a) hearing.

At the hearing, Detective Warren testified that on March 3, 2007 he interviewed Brooks at a hospital emergency room, where she was seeking treatment for back and chest pains. However, he testified that she was willing to speak with the police and did not appear to be under the influence of drugs or otherwise unable to think clearly. He also testified that the hospital medical staff gave him permission to interview Brooks, which, based on his past experience with interviewing people at that hospital, they would not have done if her medical condition precluded an interview.

Warren explained that before he turned on the tape recorder, he conducted a short pre-interview with Brooks, to be sure that she was actually a witness to relevant events. However, he denied coaching her or suggesting to her that defendant was the shooter. He testified that during the taped interview, he similarly asked open-ended questions, seeking to have her describe in her own words what she saw on the day of the shooting. Without coaching, she unambiguously identified "Jeff" [Ayers] as the shooter.

By contrast, in her hearing testimony, Brooks insisted that before she arrived at the hospital she had been taking heroin and other drugs all day, and was sick and confused while she was at the hospital. She contended that during the pre-interview, the police browbeat her into giving a statement and coached her to say that defendant was the shooter even though she initially told them that she did not recognize the shooter.

In an oral opinion placed on the record on June 11, 2009, the judge considered the fifteen factors set forth in State v. Gross, supra, 121 N.J. at 10, to determine whether the recorded statement was admissible under N.J.R.E. 803(a)(1)(A). The judge found Warren to be "an extremely credible witness." He also did not believe Brooks' hearing testimony that she had been taking illegal drugs before she arrived at the hospital. He found that Brooks' recorded statement was reliable, and that she had no reason to lie when she was making the statement. He found the recorded statement was straightforward, and that while Brooks was understandably uneasy about describing such an upsetting event, she was not unwilling to give the statement. He did not find that the questioning was "unduly suggestive" or coercive.

He also found the statement reliable because Brooks said, in the statement, that Jeff was someone she knew and liked and that she was shocked that he would commit a violent act. He reasoned that if she had wanted to make up an accusation, she could have named "any one of the other people that were there in the neighborhood."

After the judge made his ruling, both counsel agreed on the limiting instruction that he proposed to give the jury concerning the prior inconsistent statement of a recanting witness. When the jury returned, the prosecutor played the audio recording, with Brooks on the witness stand, and the judge immediately gave the agreed-upon instructions.

In his appellate brief, defendant contends that the trial judge should not have found Warren to be a credible witness and should have believed Brooks's testimony. Having reviewed the record, we find no basis to second-guess the judge's credibility determinations, and we conclude his factual findings are supported by sufficient credible evidence. See Locurto, supra, 157 N.J. at 471-72. We also find no merit in defendant's argument that Brooks's trial testimony was not materially inconsistent with her March 3 statement to the police. By her own admission, Brooks knew defendant quite well before the day of the shooting. A few days after the shooting, she identified him unequivocally as the shooter. By the time of the trial, she was backpedaling on who she saw and claimed she did not even recognize defendant in the courtroom.

Defendant's additional argument that Brooks might have been implicated in the murder, and that her March 3 statement should thus be deemed unreliable, is far-fetched and finds no support in the record. His additional arguments with respect to this statement warrant no further discussion here. R. 2:11-3(e)(2).

iii.

In her trial testimony, Brooks also admitted that on May 2, 2009, she gave an audiotaped statement to Karl Ryans, a private investigator. Brooks testified that she "told him what I told the detectives on the [March 3, 2007] audiotape. I told him what I thought was the truth." Brooks agreed that she told Ryans that she saw "Jeff" shooting at Lacewell. However, she then testified that she had no present recollection of what happened in the interview. At the prosecutor's request, the judge held another N.J.R.E. 104(a) hearing, this time on the issue of whether Brooks was feigning a lack of memory. See State v. Brown, 138 N.J. 481, 542 (1994), overruled on other grounds, State v. Cooper, 151 N.J. 326, 377 (1997); State v. Soto, 340 N.J. Super. 47, 66 (App. Div.), certif. denied, 170 N.J. 209 (2001).

At this second hearing, Karl Ryans, a private investigator, testified that he interviewed Brooks at the request of defense counsel and audiotaped her statement. Ryans testified that Brooks told him she saw "the gentleman . . . [t]hat was doing the shooting" and that his name was "Jeff." However, although it was not on the tape, Ryans testified Brooks also told him she "wasn't really sure" if Jeff was the shooter. Ryans also testified that Brooks told him she had taken medication and that she "seemed medicated" and was "very nervous and shaky." The State sought to introduce just the portion of the interview in which Brooks unequivocally stated that the shooter was Jeff.

In an oral opinion placed on the record on June 16, 2009, the judge found that Brooks had given trial testimony that was inconsistent with the statement to Ryans. He also found that in her trial testimony she was feigning a lack of memory. He found she was "a reluctant witness . . . who will . . . try to pretend and say that she really doesn't remember things that she doesn't want to face." After reviewing the Gross factors, he concluded that the portion of the interview that the State sought to introduce was reliable.

After the judge made that ruling, defense counsel insisted that if that limited portion was admissible, the jury should hear the entire taped interview. See N.J.R.E. 106; State v. Wade, 99 N.J. Super. 550, 556-57 (App. Div. 1968) (discussing the rule of completeness). The prosecutor consented, and, when Brooks resumed her trial testimony, the prosecutor played the entire tape. Once again, the judge gave the jury an instruction as to the use of her prior statement. During Brooks' cross-examination, defense counsel questioned her at length about the entire statement she gave to Ryans.

On this appeal, defendant argues that Brooks's statement to Ryans was not reliable, her statements to Ryans were not inconsistent with her trial testimony, and the judge should have found Brooks to be a credible witness. These arguments are without merit. R. 2:11-3(e)(2). We find no basis in the hearing record to disturb the judge's factual and legal findings. Locurto, supra, 157 N.J. at 471-72. We affirm the judge's ruling substantially for the reasons stated in his oral opinion of June 16, 2009.

iv.

Defense counsel also questioned Brooks about a May 11, 2009 statement she gave to prosecutor's detectives. Brooks admitted that in her May 11 statement, she told the detectives "that [she] didn't remember certain things that [she] may have said" during the March 3, 2007 interview. After asking several questions about the May 11 statement, including asking Brooks about her observations of Tank at the scene, defense counsel asked Brooks whether she really was "not sure what happened on February 28th, 2007," to which Brooks responded "yes." On re-direct examination, the prosecutor noted that defense counsel had Brooks read only a portion of a pertinent section of the May 11 statement, concerning Tank, and he asked Brooks to read the rest of that section. In the latter part of the section, Brooks had identified defendant as being the person who confronted the victim at the scene and "pulled him off to the side" right before Tank insisted on searching the car. Defense counsel did not object.

For the first time on appeal, defendant now claims that the section Brooks read in response to the prosecutor's question was inadmissible hearsay. However, we conclude that the section was admissible under the doctrine of completeness. See N.J.R.E. 106. Defense counsel had Brooks read a section of testimony that made it appear that only Tank was present outside Lacewell's car; the prosecutor was entitled to have Brooks read the rest of that portion of her statement in which she also identified defendant as being present.

v.

Defense counsel also questioned Brooks about her Grand Jury testimony from September 21, 2007. Brooks agreed that in that testimony, she stated she was not sure who the shooter was. Brooks testified that she was under the influence of a lot of medication when she appeared before the Grand Jury. The gist of defense counsel's questioning was that Brooks' Grand Jury testimony was largely consistent with her trial testimony that she was unsure about what she saw on the night of the shooting. N.J.R.E. 607; N.J.R.E. 803(a)(2).

Defense counsel did not request the trial judge to charge the jury that Brooks's prior consistent testimony could be considered substantively. Defendant now argues for the first time on appeal that the judge should have sua sponte given that instruction. See R. 1:7-2. Based on the entire record, we find no plain error in this omission from the charge. See R. 2:10-2.

C.

 

In his point III, defendant argues for the first time on appeal that, over defense counsel's objection, the court should have charged the jury on lesser included offenses to murder. This argument is without sufficient merit to warrant discussion, beyond the following comments. R. 2:11-3(e)(2). The Supreme Court has recently re-emphasized that a trial judge is under no obligation to give a charge not requested by the defense unless the evidence clearly requires it. "[T]hat duty arises only when the record evidence clearly indicates the need for or clearly warrants the unrequested jury instruction." State v. Rivera, ___ N.J. ___ (2011)(slip op. at 24).

In this case, the victim fell to the ground and the shooter stood over him and attempted to fire, but the gun misfired. The victim got up and started running away. The assailant fired several times at the fleeing victim, shooting him in the back. Those facts would not support a charge of manslaughter. Further, for tactical reasons, defense counsel opposed giving that charge, because the defense theory was that defendant was not involved in the shooting at all. See State v. Perry, 124 N.J. 128, 162-64 (1991). We find no plain error in the trial judge's failure to include the charge over defense counsel's objection. R. 1:7-2; R. 2:10-2.

D.

In his Point IV, defendant contends for the first time on appeal that the judge improperly instructed the jury on felony murder. N.J.S.A. 2C:11-3a(3). Defendant argues that the felony murder charge was based on evidence that when Lacewell was dragged into the alley, he was robbed of his cell phone and the murder occurred as Lacewell was trying to escape from the robbers.

[C]riminal homicide constitutes murder when . . . It is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, . . . and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants.

 

[N.J.S.A. 2C:11-3a(3).]

 

Defendant contends that the jury should have been instructed as to the defense contained in the felony murder statute:

except that in any prosecution under this subsection, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:

 

(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and

 

(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and

 

(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and

 

(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

 

[N.J.S.A. 2C:11-3a(3)(a)-(d).]

 

In this case, defendant did not raise this defense, and the evidence did not support the charge. See Rivera, supra, slip op. at 24; cf. State v. Walker, 203 N.J. 73, 89 (2010). Moreover, giving the charge would have undermined the defense theory of the case, which was that defendant was not at the murder scene and was completely uninvolved in the robbery or the killing. Finally, the jury's verdict finding defendant guilty on the weapons offenses strongly indicates that defendant would have been convicted of felony murder even if the statutory defenses had been included in the charge. R. 2:10-2.

E.

 

We find no merit in defendant's challenge to his thirty-five year sentence. The judge appropriately considered aggravating factor three (risk of re-offense), because defendant committed this homicide while he was out on bail after being arrested in connection with an alleged carjacking. The judge properly considered the importance of deterring gun violence (aggravating factor nine), and the fact that the victim was shot in the back while attempting to flee. He also considered mitigating factor seven, because defendant had a relatively sparse prior criminal record. Given the considerable deference we owe to the trial court's sentencing decision, we find no basis to disturb the sentence imposed here. See State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Roth, 95 N.J. 334, 365 (1984).

Further, because defendant was sentenced on the same day for this conviction as well as for a guilty plea to receiving stolen property, he is not entitled to gap time. See N.J.S.A. 2C:44-5b(2); State v. Carreker, 172 N.J. 100, 104-05 (2002).

Affirmed.

 

1Defendant also pled guilty to possession of stolen property, arising out of a completely separate incident, and received a three-year sentence. As part of the plea agreement, that sentence was imposed on the same day as, and runs concurrent to, the sentence imposed on the murder conviction.

2 This witness did not testify at trial.