STATE OF NEW JERSEY v. FAHEEM K. COOK

NOT FOR PUBLICATION WITHOUT THE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.

FAHEEM K. COOK,

Defendant-Appellant.

______________________________

October 31, 2013

Submitted July 16, 2013 Decided

Before Judges Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-02-0315.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

This case involves the strong-arm robbery of a McDonald's employee near Newark Penn Station in the middle of a summer afternoon. Defendant Faheem Cook appeals from his conviction, after a jury trial, of second-degree robbery, N.J.S.A. 2C:15-1, and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, as charged in a February 2010 Essex County indictment. After merging the conspiracy count into the robbery count, Judge Michael L. Ravin imposed a sentence of seven years, with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.

I.

Cook and his cousin James Bush were both charged in the two-count indictment. Bush pleaded guilty to the robbery in return for the State's recommendation of a four-year NERA term. While awaiting sentencing, he testified against Cook. The State also called the victim of the robbery, Josue Salazar, and the investigating Newark Police Department Detective, Taibu Thomas. Cook was the sole defense witness.

Bush testified that on August 28, 2009, he told Cook he needed money after his wife threw him out of his home for failing to support his family. Bush was unemployed. Bush asserted that Cook proposed a robbery. Bush claimed he initially resisted the idea, but, when Cook suggested they go downtown, Bush accompanied Cook to Penn Station. Bush said he believed they were going to rob someone. Bush and Cook were captured in a surveillance photo near the station at 2:02 p.m. The two walked around, "lookin' for somebody to get" or rob. Bush asserted that as Cook identified potential targets, he ridiculed and belittled Bush over his reluctance to commit the robbery.

Bush asserted that Cook ultimately selected Salazar as the target. Bush said they saw Salazar at the McDonald's restaurant in the station. Bush was depicted in a photo, time-stamped at 2:00 p.m., in front of the McDonalds. Bush and Cook followed Salazar when he walked to the Gateway Center to withdraw money from an ATM. They followed him back to the McDonalds, waited while he ate a meal, and then followed him once he left the restaurant and station. They trailed him as he walked down Ferry Street.

Bush said that Cook dictated how the robbery would be committed. "Faheem was basically telling me, this is what you gonna do; you gonna walk up behind 'em. You gonna walk up on the side of 'em, put your arm around 'em and I'll do the rest." Bush complied, placing his left arm around Salazar's shoulder.

Bush testified:

I said, let me use your phone; and he responded: What? And I said, where's the money? And Faheem cut me off and he said, I'm not gonna be as nice as my cousin. Give me your phone give me your [iP]od. And the guy replied: You can't have my phone but you could have my money.

While Cook spoke to Salazar, he threatened him with a balled up fist. Bush testified that Cook grabbed Salazar's iPod and $100 in cash.

Accompanied by Bush, Cook sold the iPod at an electronics store in Newark. Bush testified that Cook paid $50 for sneakers for Bush's children, but did not otherwise share the proceeds of the crime. However, Bush stated in a prior statement that he and Cook "divvied up the money 50/50."

The next day, Cook and Bush returned to Penn Station, where Bush intended to meet his wife. Thomas recognized Bush and Cook from surveillance video that he had viewed earlier in the day, in response to Salazar's crime report. Cook and Bush were arrested.

Thomas testified that Bush and Cook wore the same clothes from the previous day, as depicted in the surveillance video. Bush was wearing all black. Cook wore blue jeans and a white t-shirt. Thomas also identified surveillance photos depicting Cook and Bush inside the train station shortly after 2:00 p.m.

Salazar's version of the crime generally conformed with Bush's. Salazar testified he noticed two men following him as he walked to the ATM to cash his McDonald's paycheck, and after he returned to the restaurant for a meal. Contrary to Bush's testimony, Salazar, an assistant manager, said he was not at the McDonald's before cashing the check, as he was not working that day. However, he said he saw Bush and Cook at the restaurant the day before the robbery. He also said that after his meal, he stopped into a newsstand for twenty minutes to assure himself the two were not still following him. With the men no longer in view, Salazar left the station. As he walked down the street, listening to his iPod, they accosted him.

Although they initially approached, "trying to make it seem like they were friends," they quickly became threatening. Salazar testified that one man, dressed in black, held him in a "choke hold." The other, whom he identified as defendant, dressed in a white shirt, threatened that he would not be as nice as his cousin while menacing him with a fist. He said that Bush and Cook took $280 in cash and his iPod.

The defense theory of the case was that Bush falsely implicated, and Salazar mistakenly identified, Cook. Although Cook conceded he accompanied Bush to the station, he never intended to commit a robbery and left Bush before the crime was committed.

During cross-examination of Thomas, defense counsel elicited that Salazar was not asked to identify Cook or Bush after the arrest. Thomas explained it was unnecessary because Bush admitted his involvement, and the arrestees' general description fit the one Salazar gave. Thomas also conceded on cross-examination that, according to the incident report prepared after Salazar reported the crime, the man who threatened him wore black jeans, not blue. However, Thomas asserted that Salazar stated to him that his attacker wore blue jeans.

In court, Salazar identified Cook as one of the robbers. He also identified Cook from a surveillance photograph from August 28, 2009. Defense counsel highlighted that Salazar testified that Cook was wearing blue jeans and a v-collar t-shirt during the robbery; however, the surveillance photo of Cook apparently depicted him wearing a crew-neck collar and blue jeans. Salazar also testified that before the arrests, he was unable to identify the robbers when he was shown a photo-array on a computer, and he was not asked to identify the co-defendants after their arrest. However, in support of his identification, Salazar testified that he was able to get a good look at defendant's face when he committed the robbery.

Cook denied planning or participating in the robbery. He stated that Bush did visit him at his home on August 28, 2009. Bush was very upset. They went to downtown Newark, visited stores, and eventually stopped to eat at McDonald's in Penn Station. Cook then gave Bush $60. Cook agreed that he was depicted in surveillance photos taken in the station. He stated he was wearing a white t-shirt and blue jeans. Bush accompanied Cook to a bus stop. Cook left to pick up his daughter at school, and Bush remained at the station.

Cook testified that he next saw Bush at around 6:30 p.m., when Bush told him that he was "able to get what [he] needed," and repaid the $60. He returned with Bush to the station the next day to meet Bush's wife, and he was arrested.

During the charge conference, the prosecutor referred to discussions, apparently off the record, regarding whether the court should charge the lesser included offense of theft from the person. See N.J.S.A. 2C:20-2b(2)(d), -3a. Defense counsel requested the instruction. The State did not object, but requested that the court also deliver an accomplice liability charge.

However, after a recess, when the court attempted to confirm defendant's position, defense counsel withdrew his request, stating:

I would like to retract that. I'm no longer requesting a lesser included. The testimony was that . . . Bush testified that he was involved in a robbery. It's his contention that my client, Mr. Cook, was involved. The victim, Mr. Salazar, testified that there was a robbery, that force was used by intimidation by the . . . defendant making a fist, as well as him being choked around the neck. So, your Honor, most respectfully and my contention is, is that based upon the testimony well, I withdraw.

Based upon the testimony, it's alleged that there was a robbery, that Mr. Bush and Mr. Salazar both agree on; it's just a contention of whether my client was involved. So, therefore, your Honor, I don't see where the lesser included would be appropriate here and, therefore, I am withdrawing my request.

Defense counsel added that he had "significant conversations" with Cook that day, explained "the ramifications of a lesser included" and "[Cook] agreed to withdraw the request for the lesser included." Cook confirmed that on the record.

Judge Ravin recognized that "where the facts and evidence clearly indicate [its] appropriateness," a court is obliged, sua sponte, to instruct the jury as to a lesser included offense, notwithstanding the absence of either party's request. However, Judge Ravin concluded that the charge was not required, stating:

If the facts clearly indicate that the jury could find the defendant guilty of the lesser offense and not guilty of the greater offense, the Court must charge the lesser offense. However, charging a lesser included offense should not cause complete surprise, or be so inconsistent with the defense as to undermine the fairness of the proceedings.

Generally, the parties['] strategic considerations are not of primary importance in the decision to charge a lesser included offense, as the public interest in a correct verdict based on the evidence must trump the partisan strategic maneuvering of both the state and the defendant. That is not the case here, as I repeat, the facts and evidence do not clearly indicate the appropriateness of a lesser included offense of robbery, such as theft from the person or theft of movable property.

The jury deliberated less than one hour before returning its verdict.

Defendant presents the following issues for our consideration:

POINT I

A JURY INSTRUCTION SHOULD HAVE BEEN GIVEN ON THEFT AS A LESSER-INCLUDED OFFENSE OF ROBBERY AND CONSPIRACY TO COMMIT THEFT AS A LESSER-INCLUDED OFFENSE OF CONSPIRACY TO ROB. (Plain-Error Standard Applies).

POINT II

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

II.

A.

We begin by reviewing well-established principles governing a court's obligation to charge a lesser-included offense when neither party requests such an instruction. As Judge Ravin correctly observed, a trial court must determine whether the evidence clearly indicates the charge. The Supreme Court has stated:

[I]n the absence of a request, we have "held that 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." State v. Jenkins, 178 N.J. 347, 361 (2004) (citations omitted). Conversely, 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." State v. Savage, 173 N.J. 374, 401 (2002) (citations omitted).

[State v. Thomas, 187 N.J. 119, 132 (2006) (alterations in original).]

The Court has stated that the evidence must be "jumping off the page" to "clearly indicate[]" the lesser-included charge. State v. Denofa, 187 N.J. 24, 42 (2006). A judge is "not obliged to sift meticulously through the record in search of any combination of facts supporting a lesser-included charge." Ibid. (citations omitted).

Also, the court may not sua sponte charge a lesser-included offense where it would "cause complete surprise, or [be] so inconsistent with the defense as to undermine the fairness of the proceedings." State v. Garron, 177 N.J. 147, 181 (2003). In a case where the defense is predicated on the defendant's absence from the scene of the crime, as it was here, it may be particularly problematic to charge a lesser-included offense that reinforces the defendant's presence. "[F]orcing counsel to incorporate defenses that pre-suppose the existence of the very fact his main method of defense contests destroys the credibility and coherence of the defense entirely. Our analysis of the duties of a trial judge must be seasoned by a degree of deference to defense counsel's strategic decisions." State v. Perry, 124 N.J.128, 163 (1991) (internal quotation marks and citation omitted) (stating that court was not obliged sua sponte to charge self-defense where defendant denied his presence at the scene); see also State v. Noble, 39 8 N.J. Super. 574, 596-98 (App. Div.) (stating that court was not required sua sponte to deliver lesser included passion/provocation manslaughter instruction where defendant denied he was in the city where the crime occurred, and the trial evidence did not otherwise support the charge), certif. denied, 195 N.J. 522 (2008).

Applying these principles, we discern no error in the trial court's determination that the evidence did not "clearly indicate" the appropriateness of a lesser included charge of theft from the person. We do not question whether theft from the person is a lesser included offense of robbery, or that conspiracy to commit theft is a lesser included offense of conspiracy to commit robbery. See State v. Mejia, 141 N.J. 475, 495 (1995) ("The Code . . . incorporates theft as an element of robbery. In this sense, all robberies are thefts, but not all thefts are robberies."), overruled on other grounds by State v. Cooper, 151 N.J. 326, 377-78 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000); N.J.S.A. 2C:15-1a (stating a person commits robbery if "in the course of committing a theft, he . . . [t]hreatens another with or purposely puts him in fear of immediately bodily injury"); N.J.S.A. 2C:20-3a (defining theft of movable property); N.J.S.A. 2C:1-8d (stating that an offense is "included" when it is established by "proof of the same or less than all the facts required to establish the commission of the offense charged" or "[i]t consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein").

However, the only witnesses who claimed the theft occurred Salazar and Bush testified that it was accompanied by clear and unequivocal threats of injury. This was more than the equivalent of a purse-snatching or pick-pocketing that may not rise to robbery. Cf. State v. Smalls, 310 N.J. Super. 285, 289-90 (App. Div. 1998) (analyzing the two types of theft). Both Bush and Salazar testified that Cook menaced Salazar with a fist, and threatened that he would not be as nice as Bush. Defendant did not challenge Salazar's testimony that he was a robbery victim. He testified that he simply was not there; Salazar mistook him for someone else, and Bush lied. Defendant expressly withdrew his request to charge the lesser included offense, apparently recognizing that it was incompatible with his defense.

Relying on the general principle that a jury is free to believe part or all of a witness's testimony, defendant argues the lesser included charge was mandated because the jury could have believed the witnesses' testimony about the theft, but not the threats of violence. We disagree. There must be more than a theoretical possibility that a jury could find a defendant guilty of a lesser included and not the charged offense to require a sua sponte instruction. Yet, accepting Bush and Salazar's testimony, Cook's actions were unambiguous. Cf. State v. Rose, 237 N.J. Super. 511, 516 (App. Div.) (stating that, but for the surprise to the prosecution, a sua sponte charge of theft as a lesser included of robbery "was indicated" where there was a reasonable dispute regarding whether defendant, as opposed to a juvenile cohort, engaged in an assault on a convenience store clerk in course of a theft), certif. denied, 122 N.J. 145 (1990). Here, there was no indication, let alone a clear indication, in the evidence that Salazar was a victim of theft, but not robbery.1

B.

We briefly address defendant's excessiveness challenge to his sentence. Judge Ravin imposed a sentence slightly below the mid-point of the sentencing range of between five and ten years for second-degree robbery. See N.J.S.A. 2C:43-6a(2). Defendant was twenty-five years old and had no prior convictions, although at the time of sentence, he had two pending indictments charging first-degree robbery and firearms offenses. He was the father of a child in Georgia. The judge found aggravating factor three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3), citing defendant's lack of remorse. He found that factor was in balance with mitigating factor seven, the lack of a "history of prior delinquency or criminal activity," N.J.S.A. 2C:44-1b(7), although the court gave that mitigating factor reduced weight because of defendant's pending matters. See State v. Rice, 425 N.J. Super. 375, 382 (App. Div.) (stating that a court may refuse to find mitigating factor seven based on charges not resulting in convictions), certif. denied, 212 N.J. 431 (2012).

Defendant argues the court erred in its reliance on defendant's lack of remorse. We disagree. A defendant certainly may maintain his innocence after conviction. Nonetheless, a court may appropriately take account of a defendant's continued denial in the face of the jury's verdict. For example, a defendant who continues to deny guilt may resist participation in rehabilitative and correctional programs designed to reduce the risk of future offenses. See State v. Carey, 168 N.J. 413, 426-27 (2001) (stating there was support for trial court's finding of aggravating factor three in a vehicular homicide case where defendant "denied responsibility for the crash and did not acknowledge that he had an alcohol problem"); Rice, supra, 425 N.J. Super. at 382 (finding no error in court's weighing of aggravating and mitigating factors, where court found aggravating factor three "because defendant did 'not tell[] the truth' when testifying before the jury, lacked any remorse and took no responsibility for his actions").

In sum, we are satisfied that the judge's findings regarding aggravating and mitigating factors were based upon competent and credible evidence in the record, that the judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, and that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. Pierce, 188 N.J. 155, 169 (2006); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

1 Defendant misplaces reliance on State v. Jordan, 240 N.J. Super. 115, 118-21 (App. Div. 1990), in which we held the trial court erred in not charging theft as a lesser included offense of robbery. In that case, the defendant requested the charge, which implicated a more indulgent standard than here, where defendant expressly withdrew the request. See State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Crisantos, 102 N.J. 265, 278 (1986)) (stating that if a defendant requests a lesser included instruction, the court must "'examine the record thoroughly'" and provide the instruction if there is a "rational basis" for it).