STATE OF NEW JERSEY v. NEAL K. GRANT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NEAL K. GRANT a/k/a

RUBIN AUSTIN, DAYVON AL

KAREEN, KAREEM GRANT,

KYNEIL GRANT, KAREEM

KYNELL, MALIK GRANT,

JAMAR GRANT, NEAL A.

GRANT, KARRIEM GRANT,

JARMER K. GRANT,

KYNELL GRANT, LEVI GRANT,

WALIK GRANT,

Defendant-Appellant.

_______________________________

July 26, 2013

 

 

Before Judges Lihotz and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-02-0367.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Mark P. Stalford, Designated Counsel, on the brief).

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

 

PER CURIAM

Defendant Neil K. Grant challenges the legality of imposing an 85% period of parole ineligibility to his sentence for offenses occurring on August 20, 1999, pursuant to the No Early Release Act (NERA), N.J.S.A.2C:43-7.2. Originally listed on our Excessive Sentencing Oral Argument calendar, the matter was transferred to the plenary calendar to review this issue.

Defendant, along with co-defendant Leeshohn Brown, was charged with offenses in connection with the beating and robbery of a lunch truck operator. On February 26, 2001, a jury convicted defendant of armed robbery, N.J.S.A.2C:15-1 (count one); second-degree aggravated assault, N.J.S.A.2C:12-1b(1) (count two); third-degree unlawful possession of a weapon, N.J.S.A.2C:39-5b (count three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A.2C:39-4a (count four). In a bifurcated second trial commenced immediately following the first, defendant was convicted by the same jury of second-degree possession of a weapon by certain persons not to have weapons, N.J.S.A.2C:39-7b. Defendant did not appear for sentencing and fled the jurisdiction.

In 2003, defendant was arrested in Georgia and extradited to New Jersey. After merger, he was sentenced on January 23, 2004, to serve twenty years for the armed robbery, subject to the 85% parole ineligibility period pursuant to NERA, with a five-year period of post-release parole supervision. Applicable fines and penalties were assessed.

On appeal, this court reversed the conviction for second-degree certain persons weapon offense, and affirmed the remaining convictions and sentence. State v. Grant, No. A-6297-03 (App. Div. May 31, 2005). Certification was granted and the matter was remanded for resentencing, in light of the Court's decision in State v. Natale, 184 N.J.458 (2005). State v. Grant, 185 N.J.258 (2005).

After a hearing, the sentencing judge merged counts two and four into count one, and imposed a term of twenty years, subject to NERA, for the robbery (count one), and a concurrent five-year term for the unlawful possession of a weapon (count three). Thereafter, for the first time, defendant challenged the applicability of NERA to his sentence. The sentencing judge held a hearing to consider the issue, after which she denied his motion, along with defendant's request for jail credits relating to his confinement in Georgia while awaiting extradition. This appeal ensued, in which defendant argues:

POINT I

 

THE TRIAL COURT ERRED IN DETERMINING THAT NERA, N.J.S.A.2C:43-7.2, APPLIED TO DEFENDANT'S CONVICTION FOR ROBBERY AND IMPOSING AN 85% PERIOD OF PAROLE INELIGIBILITY AND FIVE YEAR PERIOD OF PAROLE SUPERVISION.

 

POINT II

DEFENDANT IS ENTITLED TO JAIL CREDIT FOR THE PERIOD HE WAS HELD IN GEORGIA, ON ONLY THE NEW JERSEY DETAINER, AWAITING EXTRADITION.
 

Following our review, we reject defendant's challenge to NERA's applicability; however, defendant is entitled to additional jail credits.

NERA, adopted by the Legislature as L.1997 c.117, became effective on June 9, 1997. NERA was amended by L.2001, c.129. Those amendments were made effective June 29, 2001. Although defendant's sentencing occurred after the Legislature adopted the amendments, his conviction related to an offence which preceded the amendment's effective date. The version of NERA to be considered regarding defendant's conviction provided:

a. A court imposing a sentence of incarceration for a crime of the first or second degree shall fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime as defined in subsection d. of this section.

 

. . . .

 

d. For the purposes of this section, "violent crime" means any crime in which the actor causes death, causes serious bodily injury as defined by subsection b. of N.J.S.[A.] 2C:11-1, or uses or threatens the immediate use of a deadly weapon. . . . For the purposes of this section, "deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury.

 

"Serious bodily injury" is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]" N.J.S.A. 2C:11-1b.

The Supreme Court interpreted these provisions and instructed that when convictions are based on jury verdicts, a jury must determine the NERA sentencing factor. State v. Johnson, 166 N.J. 523, 543 (2001). Specifically, the Court held NERA's "'violent crime' condition must be submitted to a jury and found beyond a reasonable doubt." Ibid.

Like this matter, Johnson examined a defendant's conviction for first-degree robbery. Id. at 545. Noting

the elements of the NERA "violent crime" factor do not overlap completely with the elements of first-degree robbery, because a defendant could be convicted of first-degree robbery where the defendant threatens the victim and is armed with a deadly weapon but does not threaten the victim with the deadly weapon[,]

 

id. at 545-46, the Court turned its review to the evidence adduced at trial. The Court determined "the only conceivable conclusion," based on the uncontroverted evidence, was that the jury's verdict established a finding beyond a reasonable doubt, that the elements of NERA's "violent crime" predicate had been met. Id. at 546.

Here, defendant's conviction was rendered two days prior to the release of the Court's opinion in Johnson. Thus, the trial judge was denied the benefit of that holding. Importantly, however, the Court limited its decision in Johnson and declined to apply its construction of NERA retroactively, stating:

[W]e will apply the rule we have announced today to the case at bar, to all cases on direct appeal on the date of this opinion where the appellant is challenging the failure of the NERA offense to be proven by the jury beyond a reasonable doubt, and to trials of cases in which NERA is implicated that commence after the filing date of this opinion.

 

[Id. at 547.]

 

Applying these conditions to the facts of this case, we conclude Johnson does not apply here. Defendant's trial and conviction occurred before the Court decided Johnson, his case was not pending on direct appeal at that time, and when he did appeal, defendant never raised this issue. Defendant did not raise his NERA challenge until the re-sentencing hearing on remand. Therefore, his case was outside the group of pending cases to which Johnson applied.

Nevertheless, for completeness, we will examine the trial record in light of Johnson's requirements. Following our review, we conclude the rule of statutory interpretation announced in Johnson was satisfied by the jury's findings.

At trial, extensive testimony was offered by the victim, Alipio Wenceslau, who explained that on August 20, 1999, at approximately 7:00 a.m., he was assaulted by Grant when co-defendant Brown struck a gun in his midsection, hit him in the head, knocked him unconscious, and, thereafter, kicked him in the face and head "multiple times." Consistent with his statement to police, Wenceslau identified defendant as the assailant who pulled his arm in an effort to force him to release the money he was clutching. According to Wenceslau, when he attempted to kick defendant away, defendant "jumped in the air and . . . landed on [Wenceslau's] leg[,]" which was broken as a result. Wenceslau underwent multiple surgeries and wore five different casts to repair his leg injuries. He also suffered broken facial bones and "bruises all over." He was out of work for six months, and, at trial, stated he still had not regained "strength in [his] leg," eighteen months after the attack. On cross-examination, Wenceslau acknowledged he did not mention defendant's conduct when telling the grand jury he was hit in the head, was rendered unconscious, and awoke with a broken leg.

Another witness saw the two assailants standing over Wenceslau, then flee. He identified defendant as one of the assailants, noting defendant fell in front of the witness's vehicle as he tried to run away.

The defense called Theresa Ayers, the executive director of a pre-school, who identified an August 20, 1999 sign-in sheet. Ayers noted defendant's son was delivered to the school at 8:15 a.m. by "K. Grant," whom she believed was Kareem Grant, identifying defendant.

The last witness to testify was defendant. He denied participation in the robbery, explaining that on August 20, 1999, his wife went to a clinic appointment at 6:30 a.m., leaving him to care for their two children. He walked the children to school that morning. He explained he signed in using his middle initial, "K." for "Kevin," and, alternatively, because he was formerly known as "Kareem." Defendant admitted that, when arrested, he did not give the police his actual address in Irvington, but instead provided the Newark address of his childhood home. Defendant insisted he uses the address of his childhood home as his mailing address. Finally, he agreed his co-defendant lived across the street from his home during his childhood.

The jury was charged and given a verdict sheet as to defendant, on which it indicated its findings as follows:

2 Count 1 ROBBERY[:]

The State has proved beyond a reasonable doubt that the defendant:

 

Was in the course of committing an act of Theft upon Alipio Wenceslau, and

That while in the course of committing that theft, the defendant either

knowingly inflicted bodily injury or used force upon another or

threatened another with or purposely put him in fear of immediate bodily injury, and

 

X Guilty

. . . .

 

In the course of committing said Robbery, was the defendant armed with, did use or threaten the immediate use of a deadly weapon, a handgun.

 

X Yes

 

Did defendant

attempt to kill anyone, or

purposely inflict or attempt to inflict serious bodily injury[.]

 

X Yes

Count 2 - AGGRAVATED ASSAULT:

The State has proved beyond a reasonable doubt that the defendant:

 

Did knowingly under circumstances manifesting an extreme indifference to the value of human life, cause or attempt to cause serious bodily injury to Alipio Wenceslau.

 

X Yes

 

We examine the requirements set forth in the version of NERA applicable in this matter to determine whether NERA must be imposed under these facts.

The Court has clarified the NERA definition of violent crime

covers three types of first- and second-degree violent crimes: (1) those in which the actor causes death or serious bodily injury; (2) those in which the actor uses or threatens the immediate use of a deadly weapon; and (3) those in which the actor uses or threatens the immediate use of physical force.

 

[State v. Parolin, 171 N.J. 223, 231 (2002).]

Defendant argues none of these categories has been satisfied because the verdict sheet is ambiguous. Although we agree a possible ambiguity precludes applying category two, we reject the notion regarding offenses in categories one and three. The second category of offense requires use or threatened use of a deadly weapon. The jury's responses recorded on the verdict sheet revealed a finding that while committing the robbery, defendant was armed with, used, or threatened the immediate use of a handgun. The use or threatened immediate use of the weapon satisfies NERA's statutory standards in category two, whereas merely being armed does not. Based on a review of the evidence, we conclude defendant's argument that the jury could have found him guilty of merely possessing the weapon, rather than using or threatening use thereof, is plausible.

We do not find the same analysis applicable regarding application of categories one and three. The first category of violent offense under the statutory framework includes offenses during which a defendant caused "serious bodily injury," as defined in N.J.S.A. 2C:11-1b. Here, defendant argues the ambiguous verdict sheet, presented in the disjunctive, makes it impossible to determine whether he was convicted of causing bodily harm or merely attempting to do so. As did the Court in Johnson, we rely on the trial evidence to interpret the jury's findings on this question.

Wenceslau stated he was "200% positive" of his in-court and out-of-court identifications of co-defendants as his two assailants. His assertions at trial were consistent with his statement made approximately twenty days following the events. He described defendant as the one who jumped on and broke his leg, the strength in which he had never regained. Wenceslau's trial testimony was challenged on cross-examination, but not refuted. Although there was slight variance in his grand jury testimony, Wenceslau asserted his statement to the grand jury was "incomplete." Further, the jury did not believe defendant's suggestion that Wenceslau was unable to identify his assailants. The jury also rejected defendant's alibi evidence, disbelieving the assertion Wenceslau must have misidentified him because defendant was walking his children to school at the time of the attack.

Finally, the jury was instructed to consider whether the victim suffered significant bodily injury only if the State's evidence failed to prove the elements of serious bodily injury to Wenceslau beyond a reasonable doubt. The jury concluded significant bodily injury was inapplicable on the evidence presented.

Following our review, the unmistakable conclusion from the uncontroverted evidence was defendant broke Wenceslau's leg in an effort to steal the money Wenceslau held in his hand. Nothing supports the possibility defendant was convicted of a mere attempt to cause seriously bodily injury; he actually did cause such harm.

Defendant's conduct also shows the use of physical force in the commission of the robbery, as required by category three. Accordingly, we conclude the jury made the required findings necessary under the applicable version of NERA. We will not alter the application of NERA to require defendant to serve 85% of his sentence prior to being considered for parole.

The State concedes the merit of defendant's request for additional jail credits for the fifty-six-day period of confinement following the completion of his Georgia sentence on September 13, 2003, until his extradition on November 7, 2003. State v. Hernandez, 208 N.J. 24, 36-37 (2011). The trial court order is reversed and the matter remanded for correction.

We affirm defendant's sentence, reverse the denial of his motion for jail credit, and remand for correction of the judgment of conviction to add fifty-six days of jail credit for the period during which defendant awaited extradition.

Affirmed in part, reversed in part, and remanded in part. We do not retain jurisdiction.