STATE OF NEW JERSEY v. OSBORNE S. MALONEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6320-06T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSBORNE S. MALONEY,1

Defendant-Appellant.

________________________________

July 28, 2011

 

Submitted November 10, 2010 - Decided

 

Before Judges Fuentes and Gilroy.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-11-1492.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

 

BruceJ. Kaplan,Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

A Middlesex County Grand Jury charged defendant with second-degree conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); second-degree conspiracy to commit second-degree burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)1 (count four); two counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts five and six); second-degree burglary, N.J.S.A. 2C:18-2 (count seven); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (count eight); third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count nine); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count ten); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count twelve).2

A jury found defendant guilty of second-degree conspiracy to commit robbery as a lesser-included offense on count one; of third-degree conspiracy to commit burglary as a lesser-included offense on count two; and of counts five, six, seven, eight and ten. The jury acquitted defendant of counts three, four, nine and twelve.

On January 16, 2007, after finding aggravating sentencing factors N.J.S.A. 2C:44-1a(2), (3), and (9), and no mitigating sentencing factors, N.J.S.A. 2C:44-1b, the court sentenced defendant on counts five and six to two eighteen-year terms of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a five-year term of parole supervision upon release; seven-year terms of imprisonment on counts one, seven, and eight; and to four-year terms of imprisonment on counts two and ten. The court directed that all terms of imprisonment run concurrent with each other and imposed all appropriate fines and penalties.

On appeal, defendant argues:

POINT I.

 

IT WAS REVERSIBLE ERROR FOR THE JUDGE TO FAIL TO INSTRUCT THE JURY ON ACCOMPLICE LIABILITY (NOT RAISED BELOW).

 

POINT II.

 

THE TRIAL JUDGE ERRED IN REFUSING THE REQUESTED INSTRUCTIONS ON LESSER-INCLUDED OFFENSES.

 

 

 

 

 

POINT III.

 

VARIOUS MERGERS SHOULD BE ORDERED ALONG WITH A REMAND TO CORRECT THE JUDGMENT OF CONVICTION.

 

We affirm the convictions; and we vacate the sentences imposed on counts one, two and eight. We also note that the judgment of conviction (JOC) mistakenly indicates that the court imposed a four-year term of imprisonment on count three, a count on which defendant was acquitted, rather than on count ten. Accordingly, we remand for the trial court to enter an amended JOC.

I.

We gather the following facts from the testimony presented by the State's witnesses at trial. Syoma Shnayder resides with his wife Rita in a single-family residence in Monroe Township, Middlesex County. On or about August 16, 2005, Chichelnitsky engaged defendant, Rodriguez and Jakubov to rob the Shnayder residence. On August 16 or 17, 2005, defendant, Rodriguez and Jakubov drove to the Shnayders' home in Jakubov's 2003 Lexus. Upon arrival, the three perpetrators sat in the vehicle "scoping out" the residence while planning the commission of the robbery. While there, defendant took pictures of the premises.

On August 19, 2005, at approximately 10:00 p.m., Jakubov drove defendant and Rodriguez to the Shnayder residence. Upon arrival, defendant and Rodriguez exited the Lexus and proceeded to the house while Jakubov remained inside the vehicle. Defendant possessed a knife and a .38 caliber handgun. Rodriguez possessed a nine-millimeter handgun. After entering the property, the two perpetrators saw Syoma Shnayder sitting in a hot tub in the back of the house. With full-face black masks affixed, defendant and Rodriguez approached Syoma Shnayder. Defendant grabbed Syoma Shnayder from behind by his hair and held a knife to his throat. After defendant tied Syoma Shnayder's hands behind his back with plastic zip ties, Rodriguez walked him into the house and demanded that he be told where the money was hidden. When Syoma Shnayder responded, Rodriguez took $7,000 from a table and two watches from a drawer in the kitchen.

Rita Shnayder entered the house and observed defendant wearing a mask. When Rita Shnayder began to scream, defendant covered her mouth and held a knife to her head. As he did so, Rodriguez walked upstairs to look for more valuables. Upon doing so, Syoma Shnayder freed his hands and started to resist. Rita Shnayder then freed herself and ran out the front door of the home to a neighbor's residence and called 9-1-1.

As Rita Shnayder fled the home, Rodriguez began to descend the staircase of the home when he heard a gunshot. Defendant shot Syoma Shnayder in the left side of his abdomen. Upon hearing the gunshot, Rodriguez observed defendant running out of the house. Rodriguez began to follow, but as he did, Syoma Shnayder grabbed his leg. Rodriguez kicked himself free of Syoma Shnayder's grasp and ran out the door observing Jakubov and defendant leaving the scene in Jakubov's motor vehicle. Rodriguez then fled the scene on foot. In flight, Rodriguez removed and discarded the shirt he was wearing; discarded his plastic gloves that he had worn in the residence; and threw his nine-millimeter handgun into the brush and weeds.

When Rodriguez was four or five blocks from the Shnayder residence, he was approached by Patrolman Allan Wayne Excel. After observing Rodriguez breathing heavily and acting nervously, Excel patted Rodriguez down, finding the $7,000, the two watches, and two cell phones taken by Rodriguez from the premises. He also recovered a full-face black mask from Rodriguez's back pocket.

Upon arrest, Rodriguez informed the police of Jakubov's and defendant's participation in the robbery and that the police should be looking out for the Lexus automobile. At police headquarters, Rodriguez agreed to cooperate with the police. At the request of the police, he made a cellular telephone call to defendant and Jakubov while the police listened in on the conversation. Defendant requested Jakubov to come and get him. A few minutes later, Rodriguez called Jakubov back and was told by Jakubov's girlfriend that Jakubov had been arrested for driving without a license.

Rodriguez then spoke to defendant and asked defendant to come and get him. During the conversation, defendant inquired of Rodriguez how much money he had removed from the premises, and Rodriguez confirmed $7,000. Rodriguez also confirmed that he had two expensive watches in his possession. Through a pre-arranged plan with the police, Rodriguez agreed to meet defendant at a motel at Exit 8 of the New Jersey Turnpike. When defendant arrived at the premises in a taxicab, he was arrested. Defendant testified at trial and denied participating in both the planning and the commission of the robbery. However, defendant acknowledged that he had traveled to an area in New Jersey several days prior to the robbery in the company of Jakubov and Rodriguez when pictures were taken of the victim's residence. On the evening of the robbery, according to defendant, Rodriguez telephoned him asking to be picked up in New Jersey. Defendant denied that Rodriguez told him anything about the $7,000. However, defendant admitted that Rodriguez told him about the two watches and that defendant believed that they were stolen property.

Upon arriving at the motel on the New Jersey Turnpike, he was arrested. According to defendant, he thought that he was going to be reimbursed for his taxicab fare by Rodriguez: "I was told I would get[] reimbursed my money that I paid to get the cab, and when the watches have been swapped, I would get money back and extra."

II.

Defendant argues that the trial court erroneously failed to sua sponte instruct the jury on accomplice liability. Defendant contends that the jury should have been instructed that it could determine he had acted with a lesser criminal state of mind than the principal. Defendant asserts under the facts "that the omission of an accomplice liability instruction was plain error, which warrants a reversal of defendant's convictions."

Defendant did not raise this argument during trial. The failure to challenge the court's instructions to the jury at trial constitutes a waiver to object to those instructions on appeal. R. 1:7-2; see State v. Torres, 183 N.J. 554, 564 (2005). Accordingly, we will reverse on the basis of unchallenged jury instruction error only if the error was "clearly capable of producing an unjust result." R. 2:10-2.

Proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instructions on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. Because a defendant should be tried with correct jury instructions, "an erroneous charge will rarely stand on the ground that the error was harmless." State v. Barden, 195 N.J. 375, 394 (2008). Nevertheless, "a defendant is not entitled to have the jury instructed in his [or her] own words." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff d, 158 N.J. 149 (1999).

The accomplice liability statute, N.J.S.A. 2C:2-6, provides in relevant part:

a. A person is guilty of an offense if it is committed . . . by the conduct of another person for which he is legally accountable . . . .

 

b. A person is legally accountable for the conduct of another person when:

. . .

 

(3) He is an accomplice of such other person in the commission of an offense;

. . .

 

c. A person is an accomplice of another person in the commission of an offense if:

 

(1) With the purpose of promoting or facilitating the commission of the offense; he

 

(a) Solicits such other person to commit it;

 

(b) Aids or agrees or attempts to aid such other person in planning or committing it.

 

"Whether a defendant is a principal or an accomplice, the State must prove that he possessed the mental state necessary to commit the offense." State v. Whitaker, 200 N.J. 444, 458 (2009). "[T]he [New Jersey Criminal Code] requires an individualized assessment of each defendant's criminal responsibility." Ibid. (footnote omitted). Thus, under the accomplice liability statute, "an accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense of which he is charged as an accomplice." State v. Weeks, 107 N.J. 396, 401 (1987) (quotation and citation omitted). Thus, "[a]n accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal." Whitaker, supra, 200 N.J. at 458. Because "each participant in a crime is guilty only to the degree of his [or her] own intent," State v. Cook, 300 N.J. Super. 476, 486 (1996), "[i]t is possible for an accomplice to be guilty of robbery and for his compatriot to be guilty of armed robbery." State v. White, 98 N.J. 122, 131 (1984).

Where prosecution is "based on the theory that a defendant acted as an accomplice, the court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993); accord State v. Ingram, 196 N.J. 23, 38-39 (2008). "[W]hen an alleged accomplice is charged with a different degree offense than the principal or lesser[-]included offenses are submitted to the jury, the court has an obligation to carefully impart to the jury the distinctions between the specific intent required for the grades of the offense." Ingram, supra, 196 N.J. at 38 (quotation omitted).

Moreover, even if the indictment did not expressly allege accomplice liability, where the evidence presented at trial permits a jury to find a defendant guilty as either a principal or an accomplice, the court should instruct accordingly. State v. Roach, 146 N.J. 208, 223, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). But before so doing, there must exist a rational basis in the trial record that the defendant acted as an accomplice. State v. Rue, 296 N.J. Super. 108, 115-16 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997); State v. Boyer, 221 N.J. Super. 387, 402 (App. Div. 1987), certif. denied, 110 N.J. 297 (1988).

Where a defendant argues that he or she had no involvement in the crime and the State only prosecuted the crime against him or her as a principal, accomplice liability instructions are generally unwarranted and failure to provide them is not error, much less plain error capable of producing an unjust result. See, e.g., State v. Crumb, 307 N.J. Super. 204, 221-22 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998).

In Crumb, we determined that a Bielkiewicz charge was not required where defendant argued that the facts at trial indicated he could have acted as an accomplice with a different state of mind from the principal. 307 N.J. Super. at 221-22. Despite the defendant's post-hoc interpretation, his theory of the case at trial was that he was not involved with the murder, and the State's theory was that he acted as the principal of the crime--not an accomplice. Id. at 221. Under the plain error standard, we determined that the defendant did not meet his burden of showing a rational basis for an accomplice liability charge, and that such charge would have detracted from the theory of defense. Id. at 222; see also State v. Oliver, 316, N.J. Super. 592, 597 (App. Div. 1998) (doubting whether accomplice liability instructions were required where defendant maintained he was not present during the offense and the State alleged defendant was principal actor), aff'd, 162 N.J. 580 (2000).

We conclude that an accomplice liability charge was unwarranted under the facts. The State only indicted and prosecuted defendant as a principal of the crimes charged. The State's theory placed defendant inside the house as one of the two armed men who robbed the two victims. The State not only presented testimony from Rodriguez that identified defendant as one of the robbers, but also DNA from a cup and a ski mask used in the robbery connecting those items to defendant. On the other hand, defendant's theory placed him at the victims' home on the day before the robbery with Rodriguez and Jakubov, but not engaging in any discussions with the other men as to why they were observing the premises. According to defendant, the next encounter he had with Rodriguez occurred after the robbery had taken place when he traveled to New Jersey to pick up Rodriguez who had committed the robbery. Defendant denied that he was at the victims' home or with the other two perpetrators at the time of the robbery.

It is unclear under either scenario how defendant could be liable as an accomplice. Under the State's theory defendant had acted as a principal; under defendant's theory, he had not aided, promoted, or facilitated the robbery. Accordingly, there was no rational basis to provide an accomplice liability instruction to the jury. See Crumb, supra, 307 N.J. Super. at 221-22; Rue, supra, 296 N.J. Super. at 115-16; Boyer, supra, 221 N.J. Super. at 402.

III.

Defendant argues next that the trial court erroneously failed to instruct the jury on two lesser-included offenses of: "(1) attempted theft, via a theory of receiving stolen property, as a lesser-included offense of the robbery," and "(2) conspiracy to commit theft [via] receiving stolen property as a lesser-included offense of the charge of conspiracy to commit robbery." Defendant contends that if the jury had found his testimony credible it could have acquitted him of robbery and conspiracy to commit robbery, finding him guilty only of the aforesaid lesser-included offenses. We disagree.

In State v. Thomas, the Court reaffirmed the distinction "between those charges that are included within the charges in the grand jury indictment (included offenses) and those that relate to the charges returned by the grand jury (related offenses)." 187 N.J. 119, 129 (2006). "Whether an offense is an included offense of another charge requires a comparison of the statutory elements of each charge." Ibid. "On the other hand, whether offenses are related is not a function of a comparison of statutory elements. Instead, the focus is whether the offense charged and the related offense share a common factual nucleus." Id. at 130 (citing N.J.S.A. 2C:1-8a) ("When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.").

Lesser-included offenses are those that are "established by proof of the same or less than all the facts required to establish the commission of the offense charged," N.J.S.A. 2C:1-8d(1), or "[they] consist[] of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein," N.J.S.A. 2C:1-8d(2), or "differ[] from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish [their] commission," N.J.S.A. 2C:1-8d(3). What is more, lesser-included offenses should only be charged to the jury if there is a rational basis in the evidence for the jury to convict the defendant of the included offense. N.J.S.A. 2C:1-8e; Thomas, supra, 187 N.J. at 131; State v. Brent, 137 N.J. 107, 117 (1994). Simply stated, there must be a rational basis to "find[] the defendant not guilty of the greater offense, as well as guilty of the lesser offense." State v. Pantusco, 330 N.J. Super. 424, 445 (App. Div.), certif. denied, 165 N.J. 527 (2000).

While "the rational basis test . . . imposes a low threshold," State v. Scherzer, 301 N.J. Super. 363, 480 (App. Div.) (quotation omitted), certif. denied, 151 N.J. 466 (1997), there must be more than an abstract reason for believing that the jury may acquit the defendant on the greater charge and return a guilty verdict on the lesser charge. "[S]heer speculation does not constitute a rational basis." Thomas, supra, 187 N.J. at 132 (quotation omitted).

"[A] trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Ibid. However, "a trial court ha[s] no duty to instruct the jury sua sponte on [an included-offense charge if] the evidence [does] not clearly indicate or warrant such a charge." Ibid. (quotation omitted; alterations in original).

Contrary to lesser-included offenses, when addressing whether a court should sua sponte instruct a jury concerning an offense that is related to the offense charged, a different analysis applies. Ibid. Because "our constitutional guarantee of prosecution only by grand jury indictment precludes any prosecutorial request for a jury instruction in respect of a related offense," the court may only so instruct the jury with the consent of the defendant and only where "there is a rational basis in the evidence to sustain the related offense." Id. at 132-33.

N.J.S.A. 2C:15-1a defines robbery in relevant part as:

[I]f, in the course of committing a theft, a defendant:

 

(1) Inflicts bodily injury or uses force upon another; or

 

(2) Threatens another with or

purposely puts him in fear of immediate bodily injury; or

 

(3) Commits or threatens

immediately to commit any crime of the first or second degree.

 

N.J.S.A. 2C:20-7a defines the crime of receiving stolen property as:

A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner. "Receiving" means acquiring possession, control or title, or lending on the security of the property.

It is clear from a plain reading of the statute that receiving stolen property under the present circumstances is not a lesser-included offense of robbery. The factual predicates to establish the violation of the robbery statute is insufficient to establish attempt to receive stolen property, N.J.S.A. 2C:20-7a. Receiving stolen property requires proof that the defendant knew the property was stolen, and robbery requires the use or threat of force during the commission of a theft. See State v. Smith, 136 N.J. 245, 249-50 (holding theft of services is not a lesser-included offense of robbery because for the former, deception must be present; whereas for the latter, threat of immediate bodily injury is required).

Furthermore, under defendant's view of the events, the facts required to commit the robbery occurred the day before defendant contends he became involved. Defendant cannot connect his subsequent action to the robbery where the robbery is complete after the theft occurs or in the immediate flight therefrom. See Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:15-1 (2011) ("[W]here a robbery transaction might be construed as having been completed, i.e. one theft accompanied by that injurious, threatening or forceful behavior necessary to complete a robbery, any additional behavior which constitutes assault under 2C:12-1 . . . is chargeable as a separate non-includable offense.). Accordingly, the crime of receiving stolen property is not a lesser-included offense of robbery.

We now turn to whether the offense of receiving stolen property is a related offense that required the court to have instructed the jury as requested by defendant. Defendant argues that the offenses are sufficiently related because both offenses concern the same stolen property--watches. Not so.

We determine that the two offenses do not share a common factual nucleus in that the same conduct does not establish the crimes of robbery and receipt of stolen property. See Thomas, supra, 187 N.J. at 130, 133. As discussed, supra, the robbery was completed before the alleged "attempted theft" and "conspiracy to commit theft" that defendant had requested be charged to the jury. Under these circumstances, receiving stolen property and conspiracy to attempt to receive stolen property are not related offenses. Thus, the trial court was under no obligation to charge the unrelated offenses.

Defendant, citing State v. Freeman, 324 N.J. Super. 463, 469 (App. Div. 1999), next contends that the trial court committed plain error in not instructing the jury that if it believed defendant's version of the facts then it must acquit him of the charges.

During the jury charge the court instructed:

Now, to summarize, if you find that the [S]tate has not proven beyond a reasonable doubt any element of the crime of robbery as I've defined that crime to you, then you must find him not guilty. If you find that the [S]tate has proven beyond a reasonable doubt that [defendant] committed the crime or robbery as I have defined that crime to you, but you find that the [S]tate has not proven beyond a reasonable doubt that [defendant] was armed with or used or threatened the immediate use of a deadly weapon at the time of the commission of the robbery, then you must find . . . defendant guilty of robbery in the second degree.

 

Although, the court did not specifically instruct the jury that if it believed defendant's testimony it must acquit him of the robbery charge, we determine the instructions were sufficiently clear as not to lead the jury to an unjust result.

After reviewing the entire charge, we conclude that the jury instructions were free of any error, much less plain error. The charge was neither ambiguous nor misleading, and properly informed the jury of the appropriate principles of law.

IV.

Lastly, we turn to defendant's request for a remand to correct the JOC. Defendant argues that the conviction on the charge of possession of a weapon for an unlawful purpose (count eight) should have merged with the robbery conviction (count five). Defendant also contends that the convictions of conspiracy to commit robbery (count one) and conspiracy to commit burglary (count two) should merge with the convictions of armed robbery (count five) and the conviction of burglary (count seven), respectively. Defendant also asserts the trial court incorrectly imposed a four-year concurrent term of imprisonment on the second-degree crime of aggravated assault (count three) for which defendant was acquitted, and failed to impose a sentence on the third-degree crime of criminal restraint (count ten) for which defendant was convicted. The State concurs with defendant's contentions and his request for remand. We agree.

We vacate the sentences imposed on counts one and eight, determining that they should have merged with the conviction on count five; we vacate the sentence imposed on count two, determining that it should have merged with the conviction on count seven. We also agree that the trial court mistakenly imposed a four-year term of imprisonment on count three, rather than on count ten. Accordingly, we remand to enter an amended JOC.

Affirmed and remanded for further proceedings consistent with this opinion.

1 Defendant is also known as Osbone Maloney, Osborne Maloney, Maloney Osborne, Osborne Malony, Malony Osborne, Sylas Malone, Osborne Moloney, Osborn Maloney, John Doe, Osbourne Maloney, Sylas Osborne, Osborne Akisosylas Maloney, Osborne Malone, Oz Malone, and Osborne S. Maloney.

2 Co-defendants Juan Rodriguez and Nathan Jakubov were also charged under the same counts as defendant. In addition, Jakubov was separately charged with third-degree receiving stolen property, N.J.S.A. 2C:20-7, under count eleven. Co-defendant Igor Chichelnitsky was charged only under counts one and two.