STATE OF NEW JERSEY v. DWAYNE HUTCHINSON

NOT FOR PUBLICATION WITHOUT THE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.

DWAYNE HUTCHINSON,

Defendant-Appellant.

________________________________________________________________

December 26, 2013

Submitted December 3, 2013 Decided

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-04-00617.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction of second-degree robbery, N.J.S.A. 2C:15-1, for which he received a sentence of seven years with an 85% percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.

Defendant was tried with co-defendant Antoinette Carter. Prior to conducting voir dire, Judge Theemling estimated the length of trial and jury deliberations to the jury pool. Neither party objected.

After the jury was empanelled, all counsel requested an opportunity to engage in plea negotiations. Defendant's lawyer stated that "viable talk about a plea [wa]s prompted by the discovery developments within the last couple of days" as defendants "knew that once the FBI report came in that the case against them was solidified." Counsel also stated that the court rulings for the past two days "finally cemented the idea that they might be wise to cut their lo[s]ses." Judge Theemling determined that the trial would proceed because the plea cut-off period had expired.

Trial testimony revealed the following facts. On the afternoon of June 1, 2010, co-defendant Carter, defendant's girlfriend, was with the victim in a student center of the University of Phoenix in Jersey City. The victim had $800 in cash that he recently received from a financial aid student reimbursement check. Carter accompanied the victim to the Newport Center Mall.

As the two walked down a stairway in the mall, the victim was attacked from behind by defendant. Defendant grabbed the victim across his neck, put his hand in the victim's pocket and removed his wallet. Defendant told the victim, "Give me everything you got." After struggling for approximately a minute, the victim was able to free himself and see defendant's face. Defendant then punched the victim in the face. Carter did not assist the victim or call for help.

The victim chased defendant out of the mall into the parking garage. The victim then told a mall security guard that defendant had robbed him. The guard wrote down defendant's license plate number, gave it to the victim and directed him to report the incident to the police.

The license plate number obtained by the mall security guard was registered to a car owned by Carter. A motor vehicle summons for the license plate had been issued to defendant. A color copy of defendant's photograph from his driver's license was shown to the victim, who identified defendant as the person who robbed him. The victim reviewed store surveillance video and identified defendant, Carter and himself outside the entrance of the stairwell where the incident happened.

Later that day, Carter came to the police station, purportedly to "check up" on the victim. She acknowledged that defendant was her boyfriend, she and the victim were classmates and that she had accompanied the victim to the mall. While Carter was talking with the police, defendant called her cell phone several times. Carter allowed the police to search her cell phone. The police obtained a warrant and the FBI transferred the phone's contacts, calls, texts, and pictures to a compact disc. The phone contained numerous incriminating text messages sent to defendant on the day of the robbery. The recovered data identified defendant by photograph as "Dwayne." The texts indicated that Carter told defendant that the victim had "all his PELL money on him" and that she was going to the mall with the victim. She advised defendant of where they would be in the mall.

The surveillance videos depicted defendant following Carter and the victim in the mall. Both defendant and Carter were convicted of all charges.

On appeal, defendant raises the following issues:

POINT I: THE TRIAL COURT'S RULING SUMMARILY PRECLUDING PLEA NEGOTIATIONS BETWEEN TRIAL COUNSEL AND THE PROSECUTOR TO TAKE PLACE AFTER JEOPARDY ATTACHED WAS AN OUTCOME NOT INTENDED BY R. 3:9-3(G) BECAUSE IT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II: THE TRIAL COURT'S STATEMENT THAT IT EXPECTED THE JURY TO DELIBERATE "ONLY A COUPLE OF HOURS OR LESS" DEPRIVED DEFENDANT OF A FAIR TRIAL BECAUSE IT AMOUNTED TO A JUDICIAL ENDORSEMENT OF THE STATE'S CASE.

POINT III: THE TRIAL COURT MISAPPLIED ITS DISCRETION BY DENYING DEFENDANT'S MOTION FOR A JURY INSTRUCTION ON THE OFFENSE OF ASSAULT WITH THE INTENT TO COMMIT BODILY INJURY.

POINT IV: THE 7 YEAR BASE CUSTODIAL TERM IS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF THE TRIAL COURT'S SENTENCING DISCRETION.

I

Defendant argues that the trial court's refusal to permit plea negotiations between his attorney and the prosecutor after the jury was empanelled and sworn was an abuse of judicial discretion and violated his rights to due process and effective assistance of counsel. An appellate court should not alter a trial court's plea cut-off decision "unless there is a showing of patent and gross abuse of discretion constituting a miscarriage of justice." State v. Brimage, 271 N.J. Super. 369, 378 (App. Div. 1994).

The Rules of Court provide a plea cut-off time frame that limits the court's acceptance of a plea agreement. "After the pretrial conference has been conducted and a trial date set, the court shall not accept negotiated pleas absent the approval of the Criminal Presiding Judge based on a material change of circumstance, or the need to avoid a protracted trial or a manifest injustice." R. 3:9-3(g). A manifest injustice "does not exist simply because the parties are able and willing to enter into a plea bargain on or before the date of trial." Pressler & Verniero, Current N.J. Court Rules, Supreme Court Commentary on R. 3:9-3 (2014).

Judge Theemling's refusal to allow plea negotiations after the jury had been sworn when nothing unexpected had occurred, did not represent an abuse of discretion.

II

Defendant argues in Point II of his brief that Judge Theemling's suggestion that jury deliberations would last only "a couple hours or less" constituted reversible error because it was a declaration that the State's case was strong. Defense counsel did not object at trial. Consequently, defendant must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971) (noting plain error as a legal impropriety affecting the substantial rights of the defendant which is sufficiently grievous to justify notice by the reviewing court). In any event, a short deliberation could lead to either a guilty or a not guilty verdict.

Prior to conducting voir dire, the trial judge estimated the length of trial:

I expect the case to start early this afternoon. I expect the State's case to be over tomorrow, which is Thursday. And I hope to actually charge the jury, have summations and charge tomorrow. That would mean that jury deliberation if the jury doesn't I can never tell even how long or short a case is, how long a jury is going to deliberate. A short case sometimes they'll deliberate long, sometimes very short. A long case can be the same way. But usually on a short case, which is a day or two, jury deliberation is only a couple of hours or less.

[(Emphasis added).]

The judge did not limit the jury's deliberations to a fixed amount of time. The judge merely explained that although jury deliberation for a short case usually takes "a couple of hours or less[,]" sometimes it takes much longer. Before sending the jury to deliberate, the judge told the jury that he did not want to rush them. The judge's discussion of an anticipated timeframe for deliberations did not constitute plain error.

III

Defendant argues in Point III of his brief that the trial court committed reversible error when it denied defense counsel's motion for a jury instruction on the offense of simple assault, N.J.S.A. 2C:12-1(a).

"An appropriate charge is essential for a fair trial." State v. Koskovich, 168 N.J. 448, 507 (2001) (internal citations and quotation marks omitted). "A trial court must charge the jury regarding all of the possible offenses that might reasonably be found. . . ." State v. Cooper, 151 N.J. 326, 364 (1997). The jury charges must "relate the law to the facts of a case . . . ." State v. Savage, 172 N.J. 374, 389 (2002).

N.J.S.A. 2C:1-8(e) provides that a court should not charge the jury on a lesser included offense "unless there is a rational basis for a verdict convicting the defendant of the included offense." To "justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense." Savage, supra, 172 N.J. at 396 (citing State v. Brent, 137 N.J. 107, 113-14 (1994)). If the defendant requests a charge on a lesser included offense, "the court must focus on whether there is a rational basis in the evidence to support such a charge." State v. Maloney, ___ N.J. ___, ___ (2013) (slip op. at 29).

A defendant is guilty of robbery if, in the course of committing a theft, he "[i]nflicts bodily injury or uses force upon another." N.J.S.A. 2C:15-1a(1). An act "in the course of committing a theft" occurs in an "attempt to commit theft or in immediate flight after the attempt or commission" of the theft. N.J.S.A. 2C:15-1a. A person is guilty of a simple assault if he "purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1a(1). Defendant punched the victim in the face and took his money. Although in this factual scenario simple assault is a lesser included offense of robbery, N.J.S.A. 2C:1-8(d)(1), the evidence did not support a conviction of simple assault with an acquittal of robbery. See State v. Garron, 177 N.J. 147, 180-81 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004) (explaining that the defendant must show a rational basis, through testimony or evidence, that a jury could convict on the lesser charge and acquit on the greater charge). Defense counsel requested the jury be charged with simple assault, alleging that because of the relationship between defendant and Carter, defendant went to the mall to assault the victim out of jealousy, not to rob him. Judge Theemling denied the request stating:

I don't think a reasonable jury could believe that this assault was to create bodily injury. There's no indication of any jealousy or hostility [towards] the victim. . . . [I]f this is the person [who] did it, the intent was robbery[.]

The evidence clearly supports a finding that defendant had the intent required to commit robbery. The evidence supports that defendant's intention was to steal, not harm a rival for Carter's affections.

In addition, Carter's text messages to defendant shortly before the incident show that defendant had a premeditated plan to commit a robbery. Carter's texts communicated that the victim had cash in his wallet and provided defendant with the victim's location.

Thus, the court properly declined to charge the jury on simple assault because there was no rational basis in the evidence to convict defendant of simple assault and acquit him of robbery.

IV

Finally, defendant argues in Point IV of his brief that the seven-year sentence, closer to the minimum than the maximum of the range for a second-degree crime, was excessive. Defendant argues that the trial court's failure to consider all applicable mitigating factors warrants a remand for resentencing. He contends that his conduct was substantially influenced by Carter, N.J.S.A. 2C:44-1(b)(13), and that he did not contemplate nor did his encounter with the victim cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(1) and (2).1 The facts do not support these mitigating factors.

Where the sentencing court has followed the sentencing guidelines and has made factual findings concerning the aggravating and mitigating factors that are grounded in competent credible evidence in the record, we will not modify the sentence unless the application of the guidelines to the facts of the case makes the sentence so clearly unreasonable "as to shock the judicial conscience." State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 363-64 (1984)). This sentence is not clearly unreasonable.

Affirmed.

1 Defendant did not argue mitigating factors N.J.S.A. 2C:44-1(b)(1) and (2) to the sentencing judge.