STATE OF NEW JERSEY v. RAHEEM M. HAYES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4984-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHEEM M. HAYES,

Defendant-Appellant.

April 15, 2013

Submitted February 26, 2013 - Decided

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-04-0858.

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

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Richard E. McKelvey,Special DeputyAttorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Raheem M. Hayes appeals from his conviction for

first-degree armed robbery, N.J.S.A. 2C:15-1, and associated offenses,1 and from the aggregate sentence of sixteen years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. For the reasons that follow, we affirm.

I.

Defendant was tried jointly with co-defendant Tysheim Murphy for robbing Nyjuah Kemp in Atlantic City on February 4, 2007. We discussed the trial evidence at length in an earlier opinion affirming Murphy's conviction. State v. Murphy, No. A-4420-10 (App. Div. May 16, 2012). We summarize here the evidence pertinent to this appeal. According to Kemp, a woman named Amy lured him to an apartment on the pretext that she wanted to "hang out" with him. While Kemp was driving her to the apartment, Amy made a phone call during which she stated that she was on the way over to the apartment with "an ordinary Joe." When Kemp and Amy arrived at the apartment, two men emerged from the bathroom and robbed him at gunpoint, taking his wallet and cell phone. The robbers threatened to shoot Kemp but relented after he fell to his knees and started praying for his life. They then forced Kemp to lead them to his van and drove a short distance with Kemp sitting in the back of the vehicle. After a few blocks, they forced Kemp out of the van and drove away.

Recalling that, while driving to the apartment, he had seen a police car parked outside the Tropicana casino, Kemp ran toward the casino, found a police officer, and reported the robbery. As he was talking to the officer, Kemp spotted one of the robbers (later identified as Murphy) standing across the street with an unknown companion. Kemp then saw the other robber (later identified as defendant) entering a convenience store. Murphy was arrested on the street, and the police found Kemp's cell phone and over $400 in his pocket.

Defendant was arrested inside the store, as he was heading toward the check-out counter carrying a box of cereal. When Kemp told the arresting officer that defendant was not wearing the red hat he wore during the robbery, the police returned to the store, searched the cereal aisle, and found the red hat and a small handgun. Kemp identified the gun as the one used in the robbery. Defendant's fingerprint was found on the gun.

To establish a connection between Amy and Murphy, the police showed Kemp a photograph of a woman whom he identified as "Amy," the person who lured him to the apartment. At the trial, Kemp also identified the photo of Amy. Later in the trial, the State introduced evidence that, as of 2004, Amy and Murphy had been living together in Atlantic City.

In his trial testimony, defendant stated that at the time of his arrest, he was unemployed and was selling drugs to raise money to pay his rent. He testified that on February 4, 2007, he sold Kemp some marijuana, but Kemp balked at paying the price of $50 a gram. According to defendant, when Kemp refused to pay, defendant threatened him with a gun and Kemp handed him back the drugs. Defendant testified that, a half hour later, as he was shopping in a local store, Kemp falsely accused him of robbery. Defendant denied that he ever robbed Kemp. He also testified that he did not know Murphy and had never met him.

Murphy did not testify, but through counsel asserted that he did not know Amy and did not rob Kemp. Murphy also presented a witness, Caesar Parks, who testified that he was walking down the street with Murphy at the time Murphy was arrested. Parks stated that he had spent the previous half hour hanging out on the street with Murphy. On cross-examination, Parks admitted giving the police a false name at the time of Murphy's arrest, because he had outstanding warrants, and he admitted to having a significant criminal record.

II.

On this appeal, defendant presents the following points for our consideration:

I. THE TRIAL JUDGE ERRED IN FAILING TO PROPERLY ADDRESS, THROUGH ADEQUATE INSTRUCTIONS TO THE JURY, THE HEIGHTENED "DANGER BY ASSOCIATION" CREATED BY THE DIFFERENT TRIAL STRATEGIES THAT HAYES AND MURPHY PURSUED AND EVIDENCE ADMITTED AGAINST MURPHY THAT HAD NO PROBATIVE VALUE AS TO HAYES'S GUILT. THE RESULTING PREJUDICE TO HAYES WAS MAGNIFIED WHEN THE PROSECUTOR IN SUMMATION REPEATEDLY SUGGESTED THAT EVIDENCE ADMITTED AGAINST ONLY MURPHY WAS PROOF THAT HAYES WAS GUILTY. (Not Raised Below)

II. THE PROSECUTOR'S UNINVITED REMARKS IN SUMMATION, WHICH IMPROPERLY DENIGRATED HAYES'S TESTIMONY AND DEFENSE, REQUIRES REVERSAL OF HAYES'S CONVICTIONS. (Not Raised Below)

III. THE TRIAL COURT ERRED IN IMPOSING A SIXTEEN-YEAR "NERA" SENTENCE FOR FIRST-DEGREE ROBBERY, WHERE HAYES HAD NO PRIOR CRIMINAL CONVICTIONS, THE ONLY AGGRAVATING FACTORS WERE THREE, SIX AND NINE, AND, ACCORDING TO THE VICTIM, HAYES'S OLDER CODEFENDANT WAS THE ONE "RUNNING THE SHOW." MOREOVER, THE SENTENCE APPEARS TO HAVE BEEN IMPROPERLY INFLUENCED BY THE COURT'S DISAGREEMENT WITH THE JURY'S DECISION TO ACQUIT HAYES OF CARJACKING AND KIDNAPPING.

For the reasons that follow, we find no merit in any of these arguments.

A.

For the first time on appeal, defendant contends that the judge gave an inadequate jury charge and that the prosecutor improperly cited evidence of Murphy's participation in the crime as also establishing defendant's guilt. For the first time, defendant also contends that the prosecutor "improperly denigrated Hayes's testimony" and the defense in general. Because defendant did not raise these issues at the trial, we review them under the plain error standard. See R. 1:7-2; R. 2:10-2; State v. Nero, 195 N.J. 397, 407 (2008). Having reviewed the record, we find no error, plain or otherwise. Defendant's arguments require no discussion beyond the following comments. See R. 2:11-3(e)(2).

Although defendant did not file a motion for a separate trial,2 he now argues that the judge should have more clearly explained to the jury which evidence was relevant to the charges against each defendant. We cannot agree. The judge appropriately instructed the jury that it was required to separately consider the evidence as to each defendant and to separately consider each defendant's guilt as to each charge. In the context of this case, where defendants did not present contradictory or antagonistic defenses, nothing more was required. See State v. Brown, 118 N.J. 595, 607-09 (1990).

We find nothing improper in the prosecutor's discussion of the evidence against both defendants. In addition to robbery, both defendants were charged with conspiracy to commit robbery. The actions of both defendants were relevant to help prove the conspiracy as well as their guilt for a robbery they allegedly committed together. For example, both defendants argued that Kemp was not a credible witness, he was making up the story about Amy luring him to the apartment, and he was lying about being robbed. Although evidence concerning Amy's relationship with Murphy was directly relevant to Murphy's participation in the robbery, it was also relevant to Hayes's participation because it supported the overall credibility of Kemp's version of events. Likewise, the discovery of Kemp's cell phone in Murphy's pocket corroborated Kemp's testimony that he was robbed. We also find nothing inappropriate in the prosecutor's comments about the credibility of Hayes's testimony. His summation was a fair response to the closing arguments presented by the defense attorneys. See State v. Lazo, 209 N.J. 9, 29 (2012).

B.

Addressing the sentence, we find no merit in defendant's contentions that the sentence was excessive, that the judge failed to properly weigh the mitigating and aggravating factors, and that the judge improperly considered the jury's verdict of acquittal on the kidnapping and carjacking charges. These arguments are without sufficient merit to warrant discussion, beyond the following comments. See R. 2:11-3(e)(2).

While defendant had no adult criminal convictions, the judge accurately described his juvenile record as "extensive," including "17 arrests resulting in adjudications and violations of probation, his eight adjudications involving assaults, CDS, mischief and theft by extortion." The judge also considered the trial testimony that defendant pointed a gun at the victim and threatened to kill him. The record does not support defendant's contention that, in crafting the sentence, the judge considered charges of which defendant was acquitted. In giving a general overview of the crimes defendant committed in this case, the judge noted that defendant and Murphy "took off with [Kemp's] vehicle." However, the judge did not indicate that he was imposing a harsher sentence because defendants drove away in the victim's car; nor did he indicate a belief that defendant should have been convicted of carjacking or kidnapping.

The judge also imposed a sentence considerably lower than the possible maximum. Rejecting the State's argument that defendant deserved the maximum twenty-year sentence for first-degree armed robbery, plus consecutive sentences for the other convictions, the judge imposed a sixteen-year term for the armed robbery, and imposed concurrent terms for the numerous additional convictions. We find no abuse of discretion or other error in that sentence. See State v. Bieniek, 200 N.J.601, 607-08 (2010); State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

1 The jury convicted defendant of the following additional offenses: second-degree conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2 and 2C:15-1; second-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); third-degree terroristic threats, N.J.S.A. 2C:12-3b; and criminal restraint as a lesser included offense to kidnapping. Both defendant and his co-defendant Tysheim Murphy were acquitted of kidnapping and carjacking. The judge convicted defendant of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), in a separate bench trial.

2 In deciding Murphy's appeal, we considered and rejected his argument that the judge should have granted Murphy's severance motion.