STATE OF NEW JERSEY v. JOSEPH JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1131-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH JOHNSON,

Defendant-Appellant.

_____________________________

March 12, 2012

 

Submitted January 30, 2012 - Decided

 

Before Judges Harris and Newman.

 

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-08-1461.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

 

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Catherine Healy, Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant Joseph Johnson was found guilty of second-degree robbery, N.J.S.A. 2C:15-1 and carjacking, N.J.S.A. 2C:15-2 on counts one and two respectively of Hudson County Indictment No. 08-08-1461. The trial court denied defendant's motion for a judgment of acquittal and a new trial. The trial court also denied the State's motion for extended-term sentencing on the carjacking conviction to which the State argued for a fifty-year sentence and a consecutive ten-year sentence on the robbery. The trial court sentenced defendant to a ten-year term of imprisonment on the robbery and to a consecutive thirty-year term for the carjacking, both with 85% parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2(NERA). The requisite fines and penalties were also imposed, but no restitution was exacted. However, defendant only appeals his robbery and carjacking convictions. We now affirm.1

Briefly stated, the following are the facts surrounding the two crimes: At 8:30 a.m., on April 19, 2008, defendant entered Jacob's Delicatessen (the Deli) in Jersey City. He shouted "This is a robbery, bitch" several times and walked towards Ms. Fathia Elbahnasy, who was operating the lottery machine register in the back of the store. Defendant shoved Ms. Ann Johnson, a customer, aside and began to strike Elbahnasy in the back and neck. Defendant then pushed Elbahnasy down a small flight of stairs into the kitchen area and continued to strike her until a co-worker, Anirudha "Ani" Bangera, came to her assistance. When Bangera tried to grab defendant, defendant then turned and punched Bangera two or three times. Bangera released defendant, who then proceeded to enter the office of the Deli and attempted to kick open a window. Because a metal grill covered the outside of the window, defendant was unable to exit the store through the office. Instead, he walked back through the front door entrance and left the store empty-handed. Once outside, defendant tried unsuccessfully to kick open the door of another building before he turned back toward the Deli. At this point, Bangera locked the Deli's door after he and a few others retreated safely inside. From inside the store, Bangera saw defendant "grab[] hold of a vehicle" and struggle with its driver.

Paul Grigg was stopped at a traffic light at the intersection of Baldwin and St. Paul in Jersey City and saw defendant running down the street. Defendant then jumped in the passenger side window of Grigg's employer's Honda Element. Defendant said "guess what, it's a robbery bitch" and pushed Grigg against the driver side door. Defendant used his elbow to pin Grigg against the driver's side door, and grabbed the steering wheel and slammed his foot on the gas. Grigg tried to maintain control of the vehicle by pressing the brake as the vehicle traveled north on Baldwin Avenue, but defendant continued to press the gas pedal. Defendant and Grigg struggled for control of the vehicle, and defendant tried to bite Grigg's hands to force him to release the steering wheel. As the car proceeded approximately ten blocks down Baldwin at a high rate of speed, it sped around a bus which skidded to a halt and narrowly missed striking two elderly women. When defendant forced the wheel to the left, the car skidded through an intersection, knocking over a traffic light and two street signs before finally coming to a stop.

Defendant then jumped over Grigg and out the driver's side window and ran up the block to the corner where he stopped. Almost immediately after Grigg called 9-1-1, a police car appeared "zooming down the street." Grigg flagged down the police car and told the officer to "get him, get him, the black man with the white long-sleeved shirt and shorts." Jersey City Police Officer Jeffrey Foxall reversed his cruiser and proceeded to arrest defendant, who offered no resistance.

Defendant was handcuffed and placed in the backseat of the police car. Officer Foxall brought defendant to the Deli because he matched the description of the robber that had been the subject of a recent police dispatch. Elbahnasy testified that the person seated in the police car was the same person who attacked her earlier that morning. Johnson, who had been in the Deli when the robbery took place, identified defendant in the police vehicle. Johnson also identified defendant as the man in the Deli when she viewed him in the holding cell in the precinct later that same day.

At trial, Elbahnasy, Johnson and Bangera all identified defendant as the robber, and Grigg identified defendant as the carjacker.

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

POINT I: BECAUSE THE SHOW-UP IDENTIFICATION PROCEDURE CONDUCTED BY POLICE AT JACOB'S DELI WAS IMPERMISSIBLY SUGGESTIVE AND CREATED A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION, BOTH THE OUT-OF-COURT AND LINKED IN-COURT IDENTIFICATIONS MADE BY ELBAHNASY, ANNA JOHNSON, AND BANGERA SHOULD HAVE BEEN EXCLUDED. IN ADDITION, TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A WADE[2] HEARING.

 

A. THE IDENTIFICATION SHOULD HAVE BEEN EXCLUDED.

 

B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A WADE HEARING.

 

POINT II: THE TRIAL COURT ERRED IN FAILING TO CHARGE THIRD DEGREE AGGRAVATED ASSAULT AND SIMPLE ASSAULT AS LESSER INCLUDED OFFENSES OF ROBBERY.

 

POINT III: DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, AS COUNSEL FAILED TO RAISE THE ISSUES ADDRESSED IN POINTS I AND II, ELICITED TESTIMONY REGARDING DEFENDANT'S ALLEGED DRUG USE ON THE DAY IN QUESTION, AND FAILED TO INVESTIGATE A POSSIBLE VOLUNTARY INTOXICATION DEFENSE.

 

POINT IV: DEFENDANT'S SENTENCE IS EXCESSIVE.

 

I.

 

Defendant argues that the police "showup" procedure, that is, driving defendant to the scene of the robbery and allowing eyewitnesses to identify defendant while he sat in the backseat of the police car was impermissibly suggestive. Defendant asserts that procedure, tainted the in-court identifications and therefore both the out-of-court and in-court identification testimony should have been excluded with regard to the robbery charge.

The standard for determining admissibility of eyewitness identification is set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). Our Supreme Court adopted Manson's approach in State v. Madison, 109 N.J. 223 (1988).3 In Madison, our Court described Manson's two-step test in the following terms:

[A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.

 

[Madison, supra, 109 N.J. at 232. (internal citations omitted).]

In Manson, the Supreme Court observed that "reliability is the linchpin in determining the admissibility of identification testimony." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.

Our Supreme Court has recognized "one-on-one show-ups are inherently suggestive." State v. Herrera, 187 N.J. 493, 504 (2006). Nevertheless, "standing alone a showup is not so impermissibly suggestive to warrant proceeding to the second step" of the analysis. Ibid. This is because on or near-the-scene identifications "'are likely to be accurate, taking place, as they do, before memory has faded[] [and because] [t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.'" Ibid. (quoting State v. Wilkerson, 60 N.J. 452, 461 (1972)). In fact, "[f]ar from being conducive to misidentification, confrontation immediately after a crime promotes fairness to the accused by allowing a viewing while the witness's mental image of the perpetrator is still fresh." State v. Carter, 91 N.J. 86, 130 (1982) (citations omitted).

Given the low threshold for finding impermissible suggestiveness in police showups, we are convinced that the showup here was impermissibly suggestive. However, even if the identification procedure outside of the Deli was impermissibly suggestive, that does not end the inquiry. The second part of the analysis focuses on the reliability of the identification. Madison, supra, 109 N.J. at 232. If the identification is found to be reliable despite the impermissibly suggestive out-of-court identification procedure, the identification is still admissible.

A reliability determination is to be made from the totality of the circumstances adduced in the particular case. Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972); State v. Adams, 194 N.J. 186, 203-04 (2008). Factors to be considered include:

the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

 

[Biggers, supra, 409 U.S. at 199-200, 93 S. Ct. at 381, 34 L. Ed. 2d at 412; Adams, supra, 194 N.J. at 204.]

 

Against these factors, we are advised to weigh "the corrupting effect of the suggestive identification itself." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 153 (1977). Finding the identification was impermissibly suggestive requires that the entirety of the circumstances strongly indicates that the identification was imposed upon the eyewitness, "so that a substantial likelihood of irreparable misidentification can be said to exist." Madison, supra, 109 N.J. at 234 (quoting State v. Farrow, 61 N.J. 434, 451 (1972)). Ordinarily, a defendant bears the burden of demonstrating by a preponderance of the evidence the impermissibly suggestive nature of an identification. State v. Hurd, 86 N.J. 525, 548 (1981), overruled on other grounds by State v. Moore, 188 N.J. 182 (2006).

Application of the factors here points to a reliable identification. As to the first factor, the opportunity of the witness to view the culprit at the time of the crime, Elbahnasy was attacked at 8:30 in the morning, by defendant who walked from the front of the store to the back, where Elbahnasy was standing and shouted several times "this is a robbery, bitch." She had ample opportunity to view defendant and was not distracted by any weapon because defendant did not display one.

The second factor is the witness's degree of attention. Ms. Elbahnasy claimed defendant walked directly to her while shouting.

The third factor is the level of certainty of the witness. Elbahnasy identified defendant at the show up procedure and in court.

The fourth factor is the accuracy of a prior description of the criminal. The record does not indicate whether Elbahnasy provided a prior description to the police, but defendant was arrested by Officer Foxall because he matched the description given of the Deli robber.

The fifth factor is the length of time between the crime and the confrontation. Less than an hour transpired between the robbery and the out-of-court identification.

Likewise, Johnson observed defendant pacing outside the store before she entered and was standing across the counter from defendant and Elbahnasy during the robbery. Johnson's attention was focused on defendant because she was able to see immediately defendant was not carrying a weapon and questioned whether he was serious about committing a robbery. She was certain the person in the police car was the same person she had seen in the Deli.

Added to the mix is the testimony of Bangera who saw defendant enter the SUV Grigg was driving. Of course, Grigg's testimony linked the chain together of defendant's exit from the SUV and defendant's apprehension by Officer Foxall. That being so, there is a continuous observation of defendant from the moment prior to entering the Deli until he is returned by Officer Foxall outside the Deli where two out-of-court identifications were made by Elbahnasy and Johnson. This unbroken testimonial trail strongly militates in favor of the reliability of the out-of-court identifications.

Parenthetically, we note that the challenge to the out-of-court identification relates to the witnesses to the robbery at the Deli and not to the carjacking charge involving Grigg. Indeed, Grigg directed Officer Foxall to defendant down the block and saw him arrested. When defendant was almost immediately brought back to where Grigg was standing, Grigg confirmed that defendant was the one who tried to commandeer the SUV. The immediacy of this out-of-court identification along with Grigg's accurate description of what defendant was wearing buttresses the reliability of Grigg's identification. In turn, Grigg's out-of-court identification lends additional support to the identifications made out-of-court by Elbahnasy and Johnson.

Furthermore, even if a collection of witnesses and bystanders were questioned unsystematically and bringing the police car to the scene was impermissibly suggestive, the totality of the circumstances nevertheless indicates that the identification was reliable. See Carter, supra, 91 N.J. at 130. See also Adams, supra, 194 N.J. at 203-04.

 

 

II.

Defendant concedes that he never requested inclusion of any lesser included offenses of third-degree aggravated assault and simple assault during trial. Nonetheless, he argues the trial court erred by not including third-degree aggravated assault and simple assault as lesser included offenses to the second-degree robbery charge. Defendant acknowledges that the issue is raised as a matter of plain error. R. 2:10-2.

Our Code Of Criminal Justice requires that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). "Courts are required to instruct the jury on lesser included offenses only if counsel requests such a charge and there is a rational basis in the record for doing so or, in the absence of a request, if the record clearly indicates a charge is warranted." State v. Denofa, 187 N.J. 24, 42 (2006)(citations omitted). Regardless of whether a defendant requests such an instruction, the trial court must instruct the jury on a lesser included offense if the facts "clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). However, if defendant fails to request a lesser included offense be charged to the jury during trial, the court is not required to "sift meticulously through the record in search of any combination of facts supporting a lesser included charge." Denofa, supra, 187 N.J. at 42. Only if the evidence for inclusion of a lesser included offense is "jumping off the page" is the court required to give a sua sponte instruction. Ibid.

Defendant argues that since nothing was taken from the store or the victims that the jury could have concluded that no robbery occurred. We disagree.

A "defendant can be convicted of robbery, even if the theft is unsuccessful." State v. Farrad, 164 N.J. 247, 258 (2000). Pursuant to N.J.S.A. 2C:15-1(a):

 

A person is guilty of robbery if, in the course of committing a theft he:

 

(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.

 

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

 

Defendant entered the store and announced that "this is a robbery, bitch" several times and proceeded to the lottery machine where he shoved a customer and assaulted two workers. Defendant's contention that the jury could have ignored the fact that he announced it was a robbery while committing the crime and simply considered it an assault is unpersuasive.

Second-degree robbery does not require the jury to find defendant actually took property. Put another way, the lesser included offenses suggested by defendant were not "jumping off the page." The trial court did not err by not including the third-degree aggravated assault and simple assault as lesser included offenses of the second-degree robbery charge

III.

Defendant argues that his trial counsel was ineffective for failing to request a Wade hearing, not requesting lesser included offenses and failing to raise a voluntary intoxication defense. "Our courts have expressed a general policy against entertaining ineffective assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). However, when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal. State v. Allah, 170 N.J. 269, 285 (2002).

A prima facie claim of ineffective assistance of counsel requires defendant to show (1) counsel's performance was deficient; and (2) but for counsel's deficient performance, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60. That standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989), superseded by statute on other grounds as recognized by State v. Cruz, 163 N.J. 403, 411 (2000). "[T]he defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling [her] responsibilities." State v. Loftin, 191 N.J. 172, 198 (2007). "To rebut that strong presumption, a defendant must establish that trial counsel's actions did not equate to sound trial strategy." State v. Castagna, 187 N.J. 293, 315 (2006) (citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95). Strategic decisions of trial counsel made after a thorough investigation are "virtually unchallengeable." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. See also State v. Martini, 160 N.J. 248, 266 (1999); State v. Savage, 120 N.J. 594, 617-18 (1990). As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal "except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial." Castagna, supra, 187 N.J. at 315.

"[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999), certif. denied, 162 N.J. 199 (1999); State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).

Here, defense counsel did not request the trial court to hold a Wade hearing as evidenced in the pre-trial conference, but still criticized the witnesses' ability to make reliable identifications. Based on the record available for this appeal, defense counsel's deficient performance in this regard was not capable of depriving defendant of a fair trial. As discussed in Point I, the identifications to the robbery charge were reliable even if resulting from an impermissibly suggestive out-of-court identification procedure. Defendant has not satisfied the second prong of the ineffective assistance of counsel test that the trial outcome would have been different. Fritz, supra, 105 N.J. at 52.

Likewise, defense counsel's failure to request that lesser-included offenses be included in the jury instruction, if error, also fails to possess the potential for depriving defendant of a fair trial. Based on reasons stated in Point II, there was sufficient evidence at trial for the jury to convict defendant of second-degree robbery. The fact that defendant was unsuccessful in stealing anything is of no consequence, given the expansive definition of robbery as set forth in N.J.S.A. 2C:15-1(a).

Finally, defendant argues counsel was ineffective for failing to raise a voluntary intoxication defense. During the charge conference the court noted: "We were talking in chambers and I asked [defense counsel] point blank do you intend to argue to this jury that any of the reckless mental states for robbery or car jacking were negated by the defendant's voluntary intoxication? She said, yes." The trial court heard argument on whether the defense could be raised without notice to the prosecution or at this stage of trial and defense counsel argued:

I did not walk into this courtroom and begin this trial necessarily with the intention to use it as a defense. There was testimony that was elicited from the officer. I believe that what's important in this case is that my client obviously cannot be compelled to testify. There was something in the report. I asked the officer about it, and therefore I began to think about the potential of intoxication as negating his mental state.

 

The trial court ruled that the record was "beyond meager" concerning evidence of voluntary intoxication and denied defense counsel's request for a voluntary intoxication defense jury charge. Moreover, from the little testimony presented, there was no evidence to indicate if the purported intoxication was voluntary or involuntary. To be sure, the trial record was devoid of evidence that could satisfy the "prostration of faculties" test enunciated in State v. Cameron, 104 N.J. 42, 54, 57-58 (1986). As a result, the trial court did not have to decide if the lack of notice of this affirmative defense as required by Rule 3:12-1 was excusable.

Defendant argues that this failure to foresee a voluntary intoxication defense is a prima facie showing of ineffective assistance of counsel. Defendant claims the prejudice he will experience is when this court denies his appeal under the plain error standard. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Savage, supra, 120 N.J. at 618 (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

Defense counsel considered the facts warranted the charge although this was brought to the court's attention for the first time after all the testimony had been concluded and both parties had rested. Significantly, there was no evidence in the record to support voluntary intoxication aside from Officer Foxall's observations to which he testified that defendant appeared intoxicated and was transported to the hospital, examined and released to be returned to the police precinct.

Our Supreme Court has warned against trial court's sua sponte inclusion of defenses which are contrary to a defendant's position at trial and might prejudice the possibility of acquittal. State v. Perry, 124 N.J. 128, 162-163 (1991). The same rationale applies here to defendant's counsel. If defense counsel was successful in securing a voluntary intoxication charge, this could have substantially prejudiced defendant's chance for acquittal based on his position that he was misidentified by witnesses or that he never intended to rob the deli. Indeed, at defendant's sentencing, he insisted that he was innocent of the charges and that the witnesses were lying. A voluntary intoxication defense which acknowledges defendant's presence at the Deli and in the SUV works at cross-purposes with defendant's protestation of innocence. Although defense counsel's attempt to include a voluntary intoxication defense before jury instructions appears ill-conceived, it did not possess the potential to deprive defendant of a fair trial. Its inclusion could have easily prejudiced defendant's quest for an acquittal based on its incompatibility with his other defenses. See State v. R.T., 411 N.J. Super. 35, 52 (App. Div. 2009).

Furthermore, defendant does not argue that he requested such a defense, nor does the record reflect a charge request. It appears the defense was a last minute contrivance. See Allah, supra, 170 N.J. at 285. Based on the existing record, defendant fails to make a prima facie showing of ineffective assistance of counsel.

IV.

Defendant argues in Point IV he was punished with an excessive sentence for exercising his right to trial. Defendant points to the trial court's statement that "[defendant] does not express any remorse at all" as evidence that he was being penalized. We disagree.

In sentencing defendant, the trial court applied aggravating factor three, the risk that defendant will recidivate, N.J.S.A. 2C:44-1(a)(3); aggravating factor six, the extent of defendant's prior criminal record and the seriousness of the offense, N.J.S.A. 2C:44-1(a)(6); and aggravating factor nine, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The trial court found no mitigating factors.

The basis for aggravating factor three was defendant's extensive adult criminal record and his violations of parole and probation, which the court found indicates "an absolute certainty" he will recommit a crime. The court also found that defendant did not express remorse or accept responsibility. The basis for aggravating factor six was defendant's criminal record including three convictions for possession of CDS, six convictions of possession of a CDS with intent to distribute within 1,000 feet of a school, unlawful possession of a weapon, aggravated assault and a federal weapons conviction. The court based aggravating factor nine on a lack of deterrence that dismissed charges, probation, parole and suspended fines have had on defendant's behavior. The court found no need to specifically deter defendant. Regarding general deterrence, the court stated it was controlled by the Legislature's enhanced and mandatory sentencing.

"While a sentencing court is directed to make explicit factual findings on the record regarding the application of these sentencing factors, they do not appear to have been intended as an exclusive or exhaustive list of relevant sentencing criteria." State v. Maguire, 84 N.J. 508, 532 (1980). At sentencing, defendant maintained his innocence and argued that the identifying witnesses were lying. These remarks prompted the trial court to mention defendant's lack of remorse in the context of aggravating factor three, the risk he would recommit a crime. The reference to remorse was not the importation of an additional aggravating factor, but rather evidence within the record used to support aggravating factor three. As an appellate court, we "should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." State v. O'Donnell, 117 N.J. 210, 216 (1989).

Defendant further contends the trial court failed to consider the severity of the carjacking offense contrary to State v. Zadoyan, 290 N.J. Super. 280, 290 (App. Div. 1996). In Zadoyan, we held that a sentence for carjacking should be influenced by the type of carjacking for which the defendant was convicted. Id. at 291. We explained additional factors to an unlawful taking of a vehicle elevated an offense to carjacking and those elements varied in seriousness. Ibid. Specifically

Element a(1) is the most serious additional fact: the infliction of bodily injury or the use of force. Element a(4), operation of the vehicle with the lawful occupant remaining in it, ordinarily would be the least serious carjacking. 2 Elements a(2) and a(3), the threat of bodily injury or the commission or threat to commit a first or second degree crime, are of intermediate concern.

 

Ibid. (footnote omitted).

 

Here, defendant jumped into the victim's car and forcibly pinned the victim to the driver's side door by placing his arm on the victim's neck. He then proceeded to press the accelerator with Grigg still in the driver's seat and struggled for the steering wheel. While fighting for control of the vehicle, defendant narrowly missed hitting a bus and two elderly women. The facts show defendant used force in his effort to unlawfully take the car and therefore his offense was properly treated as the most serious form of carjacking.

Significantly, the trial court recognized as much by only charging the jury on the most serious aspect of the carjacking statute, citing State v. Berardi, 369 N.J. Super. 445 (App. Div. 204), appeal dismissed, 185 N.J. 250 (2005), in support of its charge. The trial court's charge was in strict conformity with count two of the indictment which stated: that defendant "did, in an attempt to commit an unlawful taking of a motor vehicle, he knowingly did inflict bodily injury or use force upon Paul Grigg, an occupant or person in control of a motor vehicle . . . ." The record fully supports the trial court's sentence on the carjacking charge.

Defendant argues that consecutive sentences were not warranted under the facts of the case. He contends that the offenses were not independent of each other and took place in close proximity both as to time and location.

Our Supreme Court in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed 2d 308 (1986) established the guidelines to be utilized by trial courts in making a determination on whether to impose consecutive or concurrent sentences. The Yarbough guidelines are:

(1) there can be no free crimes in a system for which the punishment shall fit the crime,

 

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision,

 

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

 

(a) the crimes and their objectives were predominantly independent of each other,

 

(b) the crimes involved separate acts of violence or threats of violence,

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior,

(d) any of the crimes involved multiple victims,

 

(e) the convictions for which the sentences are to be imposed are numerous,

 

(4) there should be no double counting of aggravating factors,

 

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense, and

 

(6) [eliminated by N.J.S.A. 2C:44-5(a)(2)]

 

[State v. Carey, 168 N.J. 413, 422-423 (2001) (quoting Yarbough, supra, 100 N.J. at 643-44).]

While the second, fourth, fifth, and sixth Yarbough guidelines merely address procedural requirements, the five factors enumerated within the third guideline govern the sentencing court's discretionary decision whether to impose a concurrent or consecutive sentence, upon consideration of the facts underlying the crimes. Id. at 423. The five factors "should be applied qualitatively, not quantitatively[,]" and "a sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-28.

Following the Yarbough guidelines, the trial court found that "the crimes in their objective were predominately independent of each other. The defendant's objective with the robbery was to rob the store and with the [carjacking] it was to commandeer the car and get away;" "separate acts of violence or threats of violence, one in the store with the robbery victims, the other one to Grigg, the carjacking victim, so they are separate and involved different victims;" "the crimes involve multiple victims suffering separate and distinct harm." The court therefore invoked the first, second and fourth Yarbough factors in concluding that the robbery and carjacking were separate offenses. We discern no basis to disturb the trial court's decision to impose consecutive sentences on these separate offenses.

The judgment of conviction and sentence is affirmed.

 

1 Pursuant to a plea agreement, the court also sentenced defendant on two other unrelated indictments to an eight-year term of imprisonment with a four-year period of parole ineligibility for possession of CDS with intent to distribute within 1,000 feet of school property on Indictment No. 8-6-1460 and five years imprisonment for a third-degree aggravated assault on Indictment No. 8-8-1129. Those sentences were to run concurrent with each other and with the sentences imposed on the robbery and carjacking convictions. Defendant had also pled guilty to a federal weapons charge in federal court and was awaiting sentencing.

2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

3 In State v. Henderson, 208 N.J. 208, 285-93 (2011), our Supreme Court revised the Manson/Madison test to determine the reliability of eyewitness identification. The court declined any retroactivity to a case on direct appeal, applying its ruling only to future cases and for defendant Henderson and defendant Cecilia Chen, the subject of a companion case decided the same day. Id. at 302. See State v. Chen, 208 N.J. 307 (2011).