STATE OF NEW JERSEY v. TYQUAN PLANTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6235-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYQUAN PLANTER,

Defendant-Appellant.

_________________________________

May 27, 2011

Submitted November 4, 2010 - Decided

Before Judges Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-04-0796.

Yvonne Smith Segars, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Loren A. Youmans, Assistant Prosecutor, on the brief).

PER CURIAM

In a four-count indictment, a grand jury indicted defendant for first-degree robbery, N.J.S.A. 2C:15-1 (Count One); third-degree possession of a weapon, a baseball bat, for an unlawful purpose, N.J.S.A. 2C:39-4 (Count Two); fourth-degree possession of a baseball bat under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5(d) (Count Three); and, along with Jasmine Rios (Rios), first-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2. The jury found defendant guilty of first-degree robbery, conspiracy to commit robbery, and the two weapons offenses. At sentencing, the court imposed an aggregate fifteen-year sentence with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed a three-year consecutive sentence as a result of a violation of probation on an unrelated narcotics indictment to which defendant had pled guilty prior to trial. We affirm.

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING . . . DEFENDANT'S R[ULE] 3:18-1 MOTION FOR JUDGMENT OF ACQUITTAL.

POINT II

THE TRIAL COURT'S FAILURE TO, SUA SPONTE, CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF THEFT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF THE LAW AND A FAIR TRIAL (NOT RAISED BELOW).

A. THE TRIAL COURT ERRED BY FAILING TO, SUA SPONTE, CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF THEFT.

B. THE TRIAL COURT'S FAILURE TO, SUA SPONTE, CHARGE THE JURY ON THE LESSER-INCLUDED UNINDICTED OFFENSE OF THEFT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF THE LAW AND A FAIR TRIAL.

POINT III

THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS BY FAILING TO APPROPRIATELY WEIGH THE AGGRAVATING AND MITIGATING FACTORS AND HENCE SENTENCED DEFENDANT TO AN UNREASONABLE TERM OF YEARS.

The facts upon which the conviction was based reveal that as part of a negotiated plea agreement, Rios pled guilty to the conspiracy charge and testified against defendant at trial. According to Rios, defendant came to her home in Jersey City around 6:00 p.m. on February 21, 2008. While there, defendant told Rios that after he left her home, he wanted her to wait thirty minutes and then call a local Chinese restaurant to place an order for delivery at 466 Mercer Street. Rios placed the order as instructed. She also called defendant to confirm what she had done. Approximately forty minutes later, defendant called Rios and reported that he had robbed the deliveryman, Zhi Nan Lin (Lin), and took the food.

Because Rios's phone number appeared on the restaurant's caller ID, Rios was questioned by police. Upon learning of Lin's condition, she broke down crying and exclaimed that she knew what she did "was wrong" and she would "get in trouble for it." She did not think that defendant "would hurt [Lin] the way he did." She consented to the inspection of her cell phone, and in addition to the call from her phone to the restaurant, police discovered that four calls, placed between 6:27 p.m. and 7:06 p.m., were made to a cell phone found registered to a Jackie Planter, with whom defendant resided.

The investigation also led police to a juvenile, Y.B., who the State produced as a witness at trial. Y.B. testified that on the evening of the incident, he was playing football with friends on the corner of Mercer and Gray around 6:00 p.m. and saw defendant at that time. He had known defendant for approximately seven or eight years because defendant was a friend of his older brother. Defendant approached him and asked to use his cell phone. Although he told defendant there were no minutes left on the phone, defendant took the phone and walked away but returned it to him a few minutes later. Twenty minutes later, he saw defendant on the sidewalk about fifteen to twenty feet away, wearing a hat and concealing "a stick or something" on his side. Defendant crossed the street from "Welnish" Lane and then "kneeled down" hiding.

Y.B. testified that he saw a man approaching 466 Mercer Street from Broadway carrying a bag of food. The man walked up the stairs, but then his view was obstructed by trees and bushes. He then observed defendant cross the street, pull the ski mask over his face, and walk up the same stairs as the man with the food. Because of the bushes, he could no longer see defendant or the deliveryman. Nonetheless, he heard noises like "two bricks smashing each other" about six or more times, and then a few seconds later, saw defendant run down the block carrying something that "looked like a stick" and a bag of Chinese food. He became scared, and he and his friend ran. Twenty minutes later, he saw defendant near his house, but they did not speak to each other.

Lin testified that he received an order to deliver food to 466 Mercer Street, which was located a short distance from the restaurant. He walked to the location. Because he had made a prior delivery, he had money in his front and back pockets. As he was walking up the stairs of 466 Mercer, someone hit him in the head several times from behind. He did not see his assailant. His brother called him because he had not returned to the restaurant and he told his brother that he felt dizzy and did not know where he was.

Officer Jessica Melendez testified that she responded to the scene and found Lin sitting on the stairs with his hand on the back of his head. She noticed that he seemed disoriented and observed drops of blood at the scene. She interviewed Lin through his niece, who was also present at the scene. Lin was transported to the hospital by ambulance.

Detective John Wisniewski responded to Jersey City Medical Center around 7:30 p.m. that evening. He observed Lin was strapped to a backboard, semi-conscious, and vomiting periodically. Although he was unable to interview Lin, he went through Lin's clothing and found $100 in cash. Lin remained hospitalized for two weeks.

Police subsequently arrested defendant at his father's house. Defendant's father, Jack Planter, who testified on defendant's behalf, indicated that he permitted the officers to enter his home in order to execute the arrest warrant. He also consented to the search of his home and, when officers informed him that they were looking for a bat, he looked into a closet and defendant's bedroom and found two bats, which he turned over to the officers. Subsequent laboratory testing of the bats were negative for any traces of Lin's DNA.

Defendant urges that the court committed reversible error when it failed to instruct the jury on theft, a lesser-included offense of first-degree robbery. Defendant specifically points to Y.B.'s testimony that he did not personally witness any interaction between defendant and the victim. Additionally, defendant contends the absence of any DNA evidence linking him to the victim is another basis upon which his conviction should be reversed. We disagree.

Defendant did not request an instruction on the lesser- included charge of theft. We therefore review defendant's claimed error under the plain error standard, namely, whether the court's failure, sua sponte, to instruct the jury on theft, was an error that was capable of producing an unjust result. R. 2:10-2. An error capable of producing an unjust result is not simply any error but one that must be "sufficient to raise a reasonable doubt as to whether the error led the [fact-finder] to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). From our careful review of the record, we discern no such error and certainly not one capable of producing an unjust result.

A judge need not, sua sponte, give an instruction on a lesser-included offense unless the facts clearly indicate that the jury could find the defendant guilty of the lesser-included offense rather than the charged offense. State v. Choice, 98 N.J. 295, 299 (1985). In other words, the trial court is not required, on its own, to meticulously sift through the entire record to see if some combination of facts and inferences might rationally sustain a charge on a lesser-included offense. Ibid.

The evidence here did not clearly indicate that the jury could find defendant guilty of theft. First, there was testimony from Rios that defendant planned to rob the deliveryman and she assisted him in setting up the victim for the robbery by ordering Chinese food for delivery at the location provided by defendant. Defendant later called Rios to tell her that he had robbed the deliveryman. Y.B., who knew defendant for several years as a friend of his older brother, testified that he saw defendant just before the robbery and attack upon the victim occurred. According to Y.B., he saw defendant crossing the street near the area where he had just seen the deliveryman. Defendant placed a mask over his face and also had a "stick or something" by his side and started to walk up the same steps as the victim. Although his view of the steps was blocked by bushes, he heard noises like "two bricks smashing each other." Shortly thereafter, he saw defendant run down the steps carrying something that "looked like a stick" and a bag of Chinese food. When Officer Melendez arrived at the scene, she observed the victim holding his head, appearing disoriented, and drops of blood nearby. While the State presented no direct evidence that defendant inflicted bodily injury upon the victim, the circumstantial evidence pointing to his physical attack upon the victim during the course of the theft was compelling. Thus, absence of any physical evidence or eyewitness directly linking defendant to the attack upon the victim is inconsequential here. A conviction may be based upon circumstantial evidence alone provided the evidence establishes guilt beyond a reasonable doubt. State v. Josephs, 174 N.J. 44, 137 (2002). Thus, the evidence before the jury did not establish a rational basis for a lesser-included offense instruction on theft. Consequently, the trial court did not err in failing to, sua sponte, charge the jury on the lesser-included offense of theft.

We have carefully reviewed each of the remaining arguments advanced in light of the record and pertinent law, and conclude they are without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2).