STATE OF NEW JERSEY v. AL-TARIQ WARDRICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5278-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AL-TARIQ WARDRICK,1

Defendant-Appellant.

__________________________________

November 16, 2012

Submitted March 7, 2012 - Decided

M

July 29, 2013

Resubmitted January 30, 2013 - Decided

Before Judges Axelrad, Sapp-Peterson and Ostrer.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-11-3773.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).

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

PER CURIAM

On January 30, 2013, we granted defendant Al-Tariq Wardrick's motion to reconsider our November 16, 2012 unpublished opinion upholding his conviction and sentence imposed for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree burglary, N.J.S.A. 2C:18-2 (count fourteen); fourth-degree criminal trespass, N.J.S.A. 2C:18-3 (count fifteen) and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count seventeen). State v. Wardrick, No. A-5278-08 (App. Div. November 16, 2012). In seeking reconsideration, defendant urges that because another panel, in an appeal by his co-defendant Jamil McKinney, concluded that the trial court committed reversible error in its instructions to the jury on first-degree robbery, he too is entitled to a new trial on that charge. We disagree and once again affirm the conviction.

In his direct appeal, McKinney, for the first time, argued that the trial court's instruction on first-degree robbery was erroneous and led to an unjust result. State v. McKinney, No. A-1160-09 (App. Div. May 17, 2012)(slip op. at 5). The panel noted that "all counsel agreed that the jury would only consider the first-degree robbery and second-degree burglary charges and no lesser charges." Ibid. Notwithstanding this agreement, the trial court instructed the jury on second-degree robbery only to correct itself to the jury by stating there was no second-degree robbery without further explanation. Id. at 7. The panel concluded that the trial court should have instructed the jury that "they should acquit [McKinney] if they found the elements of unarmed robbery but had doubt about the armed element." Id. at 8. Because the jury was unable to reach a verdict on the weapons offenses, the panel inferred that the jury "apparently believed that they should nonetheless convict him based on the unarmed elements of robbery" and therefore reversed. Ibid. While arguably such an inference may be drawn, it is not the inference we draw from the record.

At the outset, our Court has recognized that the decision of one co-equal court is not binding upon another co-equal court. Brundage v. Estate of Carambio, 195 N.J. 575, 593-94 (2008). In this instance, we disagree that the trial court's instruction on first-degree armed robbery warranted reversal as to defendant Wardrick.

Defendant not only failed to object to the jury instruction before the trial court, but failed to raise the issue of incorrect and confusing instructions related to count two in his direct appeal. The only alleged error in the jury instructions, which defendant raised, was set forth in Point Five of his merits brief, where he contended the court committed reversible error by failing to instruct the jury on second-degree robbery. However, the court instructed the jury on second-degree robbery, albeit mistakenly.

To summarize, if you find that the State has not proven beyond a reasonable doubt any one of the elements of the crime of robbery as I have defined that crime to you, then you must find Jamil McKinney and Al-Tariq Wardrick not guilty.

If you find that the State has proven beyond a reasonable doubt that Jamil McKinney and Al-Tariq Wardrick committed the crime of robbery as I have defined the crime to you, but if you find that the State has not proven beyond a reasonable doubt that Jamil McKinney and Al-Tariq Wardrick were armed with or used or purposely threatened the immediate use of a deadly weapon at the time of the commission of the robbery, then you must find Jamil McKinney and Al-Tariq Wardrick guilty of robbery of the second degree.

If you find that the State has proven beyond a reasonable doubt that the defendant committed the crime of robbery and was armed with a deadly weapon or used or threats of the immediate use of the deadly weapon at the time of the commission of the robbery, then you must find Jamil McKinney and Al-Tariq Wardrick and Al-Tariq Wardrick guilty of robbery in the first degree.

It was following this summary that the court realized it had mistakenly given the second-degree robbery instruction and directed counsel to side bar for further discussion. After confirming it was agreed that second-degree robbery was "not appropriate in this matter," the court instructed the jury that "[t]here is no charge of robbery of the second degree. So that part is omitted." Our sister panel noted that the court gave no further explanation, and reasoned that the court should have said more. State v. McKinney, supra, slip op. at 8.

We respectfully disagree with our sister panel's conclusion that because of the confusing and erroneous instructions, "the jury apparently believed that they should nonetheless convict [McKinney or for that matter defendant] based on the unarmed elements of robbery." If this had been the jury's mindset, there was no logical reason why defendants were not also convicted of count six, first-degree robbery of Shontae Lewis. Instead, the jury was unable to reach a verdict on that charge, leading to our conclusion that the jury was not misled or confused by the court's mistaken charge on second-degree robbery.

Additionally, our sister panel's decision was also influenced by the jury's inability to reach a verdict on the weapons counts. Defendant addressed this issue in Point Six of his merits brief, arguing that the jury's failure to reach a verdict on the weapons offenses could not sustain his conviction on first-degree robbery. We disagreed and continue to do so, incorporating our discussion of that issue in our earlier opinion into this decision. State v. Wardrick, supra, slip op. at 39-46.

Finally, having granted reconsideration we take this opportunity to correct one aspect of our earlier decision.
After noting that the court initially instructed the jury on second-degree robbery and then instructed the jury that this lesser-included offense was not in the case, we stated that the "court did not repeat the charge regarding second-degree robbery in instructing the jury on Count Six, the first-degree robbery of [Shontae] Lewis." State v. Wardrick, supra, slip op. at 36. In fact, the court, for a second time, instructed the jury on second-degree robbery as it related to the victim, Shontae Lewis. However, the jury reached no verdict on that count. Therefore, any error in repeating the second-degree charge was harmless. R. 2:10-2.

Affirmed.

1 Also spelled Wardick in the appellate record.