STATE OF NEW JERSEY v. PETER RUSCH

NOT FOR PUBLICATION WITHOUT THE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.

PETER RUSCH,

Defendant-Appellant.

February 14, 2014

 

Submitted January 14, 2014 Decided

 

Before Judges Ostrer and Carroll.

 

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-03-00392.

 

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

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

In a four-count indictment, defendant Peter Rusch and co-defendant Raymond Graziosi were jointly charged with first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5d (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three). Graziosi was separately charged with third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10 (count four). Following a June 2011 jury trial, defendant was acquitted of count two, but he was convicted of the remaining counts.

At sentencing on September 1, 2011, the court identified three aggravating factors: the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. After merging count three with count one, the court considered the State's motion for an extended term, and noted that defendant's prior criminal history qualified him to be sentenced as a persistent offender. The court then sentenced defendant to a seventeen-year prison term, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant presents the following arguments on appeal:

POINT I

 

The court failed to caution the jury that co-defendant Graziosi's admission of guilt to armed robbery could not be used as evidence of defendant's guilt of the crimes he is charged with. U.S. Const. Amends. V, XIV; N.J. Const. Art. I, Pars. 1, 10 (Not Raised Below).

 

Point II

 

THE SENTENCE IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

 

We have considered these arguments in light of the record and applicable legal principles, and we affirm.

I.

These are the most pertinent facts drawn from the trial record. During the early morning hours of July 24, 2009, George Murphy was robbed at knifepoint by two individuals on the beach in Seaside Heights and approximately $100 was stolen from him. Murphy initially encountered the two men, later identified as defendant and Graziosi, as he exited a local convenience store. Murphy recounted that both of the men were white, and one wore a tan hat, white tee shirt, and jean shorts, and the other wore a red hat. They began a conversation, and at some point, Murphy asked to purchase twenty dollars' worth of cocaine. The men offered Murphy a plastic bag containing a white powdery substance, and Murphy paid the man in the tan hat twenty dollars. Murphy examined the contents of the bag, determined it was not cocaine, and demanded his money back. The two men avoided the issue, and instead, suggested that they walk to the beach together to smoke marijuana.

The men arrived at the beach between 3:00 a.m. and 3:30 a.m., and walked under the pier attached to the boardwalk. Murphy recalled that when they reached the pier, one of the men dropped the marijuana in the sand. They spent some time looking for it, and because it was still dark, Murphy used a lighter to illuminate the area. Murphy stated that at one point, he was kneeling in the sand looking for the marijuana. He remembered sensing "something was about to happen," and as he started to stand up, the man in the tan hat "sucker punched" him in the left eye.

The blow knocked Murphy to the ground, and the man in the tan hat continued to punch and kick him. When Murphy resisted, the man in the tan hat pulled a "fairly big knife" and placed it to his throat, threatened him, and demanded his money. Murphy stated that the man in the red hat was not in the area when the altercation began, but at some point came back to assist the man in the tan hat. While the man in the red hat helped restrain Murphy, the man in the tan hat removed Murphy's pants and searched them for money. The men eventually found money in Murphy's wallet and released him. Murphy estimated the altercation ended at around 4:30 or 5:00 a.m.

Murphy ran home to Ortley Beach, grabbed a kitchen knife, and walked back to the area where he had been robbed, intending to retrieve his money. He discarded the knife on his walk back to the beach because he "did not want to do anything stupid." He returned around 6:00 a.m. and found the two men still in the area where the robbery occurred. When Murphy approached them, the man in the tan hat stated, "[o]h not you again." Murphy testified that the man in the tan hat punched him, and they briefly fought again. When the fight was over, Murphy recalled that the other men "took off running" under the boardwalk.

Two eyewitnesses, Andrew Martin and William Chaney, observed the second altercation take place from the boardwalk about fifty feet away. Chaney described what appeared to be a "drunken wrestling match" involving three or four individuals, one of whom was laid out on the ground. Martin similarly recalled seeing "two guys wrestling, fighting on the ground" and "one other gentleman watching . . . walking around." The altercation ended when the individuals noticed Chaney and Martin watching from the boardwalk. At that point, Martin stated "one by one, they all made their way to the boardwalk right to where we were standing." Chaney however, "definitely saw" one or two of the individuals flee under the boardwalk. Another, who Chaney described as "disheveled" with "blood on his face," approached and told Chaney and Martin his wallet had been stolen, and asked Martin to call the police. Martin noted that his head was bleeding, and that he appeared to be the victim "the guy on the ground." Chaney recalled that the "disheveled person" was initially followed by another individual about ten feet behind him, and he was "not sure what happened," but "that person was no longer there when police arrived."

Patrolman Michael McCurdy of the Seaside Heights Police Department (SHPD) was dispatched to the boardwalk at approximately 6:30 a.m. to investigate a reported armed robbery. McCurdy spoke with Murphy on the boardwalk, who appeared "extremely nervous, [and] shaken up." Murphy advised that he had just been robbed by two individuals, and that sixty dollars had been stolen from him. McCurdy summoned medical treatment, and radioed a description of the suspects, describing one as wearing a red hat, and the other as wearing jeans, a white tee shirt, and a tan hat.

McCurdy and a partner then searched for the suspects. Nearby, they located a man wearing a red hat, later identified as Graziosi, walking out from underneath the pier towards the water, about 100 feet from where the robbery had occurred. Graziosi appeared to be standing hunched over the water as if washing his hands. McCurdy located a six-inch "flip-up" knife, with a black handle and silver blade, in Graziosi's back-right pocket, as well as two clear plastic bags containing a white, powdery substance. The officer drove Graziosi to where Murphy was standing on the boardwalk, and Murphy immediately identified Graziosi as one of the perpetrators.

Officer Joseph Caputo of the SHPD testified that when he arrived for work at 7:00 a.m., his supervising officer advised that police were looking for defendant in connection with the assault. Caputo went with another officer to Franklin Avenue in Seaside Heights, where they were told defendant's then-girlfriend, Suzanne Galazin, was living. Galazin advised that defendant was not at the house at that time, that she and defendant had an argument outside of the convenience store earlier that evening, and she had not seen him since. The woman stated that defendant was wearing only red board shorts and no shirt when she last saw him. Caputo radioed that description, and shortly thereafter defendant was spotted jumping fences in between houses. Caputo responded, and placed defendant under arrest.

Defendant gave a statement to Detective John Dymerski of the SHPD shortly after his arrest. Defendant admitted he went to the beach earlier that morning, but claimed he went for a walk alone at around 8:00 or 8:30 a.m. Defendant also stated that he knew Graziosi and had spent some time with him earlier in the day, and that the two had been "hanging out all night" at defendant's house. He denied any knowledge of the incident with Murphy on the beach.

Graziosi had pled guilty, and agreed to testify for the State. He testified that he and defendant spent most of the evening of July 23, 2009, sitting outside defendant's home in Seaside Heights. At one point in the evening, defendant proposed a plan to "crush" pills belonging to his aunt, and "beat people for money." From the exterior of defendant's house, Graziosi could see defendant sitting at his kitchen table crushing the pills. Later that evening, defendant asked Graziosi if he wanted to smoke a "blunt." Graziosi watched defendant slice open the leaves of a cigar with a "silver knife" with "black inserts" and remove the tobacco.

Around 3:00 a.m., the two men decided to walk to the beach to smoke the marijuana. Graziosi stated he wanted to stop at the nearby convenience store for coffee on the way. They were approached in the parking lot by a "young, clean cut guy" who asked to purchase drugs. After the three talked for some time in the parking lot, they walked to the beach together, and located a bench underneath the pier where they intended to smoke the marijuana.

Graziosi's testimony regarding the drug transaction differed somewhat from Murphy's, in that Graziosi recalled that it actually took place on the beach. Graziosi stated that he left defendant and Murphy for a time while he went to use the restroom, and when he returned defendant asked Graziosi to hand him the two plastic bags. The "young guy" paid twenty dollars for one of the plastic bags, examined its contents, determined it was not cocaine, and demanded his money back. Graziosi then saw defendant "sucker punch[]" the left side of Murphy's face. He testified that Murphy turned around and started to run, but defendant tackled him to the ground and held him in a headlock. When Graziosi walked over to where defendant and the man were fighting, he noticed that "the young kid's pants were . . . off[.]" Graziosi helped pin Murphy down, while defendant searched through his pockets and removed "a bill and something in cellophane paper[.]" Graziosi observed defendant hold a knife to Murphy's throat, describing it as a "flip knife, silver with black inserts in the middle." He recognized it as the same knife defendant had used earlier that evening to slice the cigar open.

According to Graziosi, a second altercation occurred when Murphy returned to the beach. When it ended, defendant "ran" past Graziosi towards the boardwalk, apparently to exit the beach. Graziosi stayed on the beach to look for the marijuana that had been dropped in the sand earlier, and in the process, located the knife and placed it in his back pocket. Police arrived, and Graziosi identified defendant as the second individual involved.

On cross-examination, defense counsel questioned Graziosi regarding his plea agreement in exchange for his testimony against defendant. At one point, counsel elicited testimony regarding Graziosi's March 7, 2011 plea hearing. The court then stated the following "for the jury's benefit":

When a guilty plea is entered in court, the person is required to take the stand and is placed under oath and the Judge has to make sure the plea is entered knowingly and voluntarily and the consequences of the plea and the person also has to establish a factual basis for the plea. The person is required to say more than I committed the offense. A person has to testify to the underlying facts that would support a conviction of a particular charge.

 

Defense counsel thanked the judge for this explanation, and continued the cross-examination.

Defendant's neighbor Galazin also recalled seeing defendant and Graziosi standing outside the convenience store in the early morning hours of July 24, 2009. Defendant approached Galazin and asked her to purchase a cigar from the convenience store. Galazin specifically recalled the incident because she and defendant argued outside the convenience store, and she intended to file a police report later that evening. Defendant subsequently knocked on Galazin s door around 9:00 a.m. She contacted the police, and described defendant as wearing "shorts with no shirt." She denied being in a relationship with defendant at any time.

Defendant called two witnesses following the denial of his motion for a judgment of acquittal at the close of the State's case. The first was defendant's aunt, Laura Duda. Duda testified that she gave defendant $100 "towards the middle" of July 2009, which he was supposed to share evenly with his sister. Duda recalled thinking it was odd that defendant had been charged with robbery because he "had money on him[,]" but she did not know whether defendant spent the money prior to this incident. The second defense witness was defendant's former girlfriend, Amanda Willits, who testified primarily regarding her relationship with defendant in July 2009. Defendant did not testify.

After both sides rested, the court addressed the jury, stating, "[w]e [the parties and the court] were working out the jury charges that are under discussion, but they need a little bit more work." The judge added, "I do not want to feel rushed and I want to make sure the instructions are clearly appropriate and . . . myself and the attorneys are all on the same page." The court then called the attorneys into chambers.

The next morning, prior to summations, the judge indicated on the record that the parties had discussed the proposed jury charges in chambers. He also indicated that both parties had received copies of the proposed instructions. The court recited a list of the proposed charges on the record, including a charge relating to the testimony of a cooperating co-defendant or witness. Both the State and defense counsel advised the court that the proposed charges were acceptable.

The court later delivered the following instruction to the jury regarding its consideration of Graziosi's testimony:

Raymond Graziosi, who was indicted for, the crimes the defendant is . . . on trial for has pled guilty to one of those charges; namely, robbery, and has testified on behalf of the State. Evidence of Raymond Graziosi's plea of guilty may be used only in determining the credibility or believability of the witness' testimony. A jury has a right to consider whether a person who has admitted that he failed to comply with society's rules would be more likely to ignore the oath requiring truthfulness on the witness stand than a person who has never been convicted or pled guilty to a crime. You may consider such evidence along with all the other relevant factors . . . in determining the credibility of a witness.

 

The law requires that the testimony of such a witness be given careful scrutiny. In weighing his testimony, therefore, you may consider whether he has a special interest in the outcome of the case and whether his testimony was influenced by the hope or expectation of any favorable treatment or reward, or by any feelings of revenge or reprisal.

 

If you believe this witness to be credible and worthy of belief, you have the right to convict the defendant on his testimony alone provided, of course, that upon a consideration of the whole case you are satisfied beyond a reasonable doubt of the defendant's guilt.

 

At the conclusion of the final charge the court asked both counsel whether they had any objections. Both responded they did not.

The jury deliberated for approximately two hours, beginning late in the afternoon on June 22, 2011. It resumed deliberating at 9:00 a.m. the next day, and delivered its verdict shortly after 4:30 p.m. In the course of its deliberations, the jury submitted six notes to the court, four of which related to Murphy s testimony and his prior statements. The jury did not submit any questions regarding Graziosi s testimony, or his plea agreement. The jury then convicted defendant of the robbery and unlawful possession of a weapon charges, and acquitted him of possession of a weapon for an unlawful purpose. This appeal followed.

 

 

II.

We turn first to defendant's contention, raised for the first time on appeal, that the trial judge failed to instruct the jury not to consider Graziosi's guilty plea as evidence of defendant's guilt, thus rendering the court's instruction "fatally defective." Defendant argues that the complete model jury instruction was especially necessary in this case because Graziosi was the only State's witness to directly implicate defendant in Murphy's robbery.

Where a defendant does not object to jury instructions at trial, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment," State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J.397 (2000), and creates a "presum[ption] that the instructions were adequate," State v. Morais, 359 N.J. Super.123, 134-35 (App. Div.), certif. denied, 177 N.J.572 (2003). An exception is made on appellate review for jury instructions issued in error. R.1:7-2. Should we find plain error "clearly capable of producing an unjust result," the conviction will be reversed. R.2:10-2.

"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). Furthermore, while an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), the error "must be evaluated in light 'of the overall strength of the State's case,'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting Chapland, supra, 187 N.J. at 289).

"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial. The trial court has an absolute duty to instruct the jury on the law governing the facts of the case." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998) (quoting State v. Concepcion, 111 N.J. 373, 379 (1988)), aff'd, 158 N.J. 149 (1999). The jury charge should also "explain to the jury how it is to apply the legal principles to the facts." Ibid. Nonetheless, a "party is [not] entitled to have the jury charged in his or her own words; all that is necessary is that the charge as a whole be accurate." Jordan, supra, 147 N.J. at 422. A defendant "is only entitled to an adequate instruction of the law." Pleasant, supra, 313 N.J. Super. at 333.

In the present case, the instruction delivered by the court is consistent with the Model Jury Charge, except that the final sentence was omitted. The omitted sentence advises the jury, "[Y]ou may not use [the co-defendant's] plea of guilty as evidence that this defendant is guilty of the crimes that he/she is charged with." Model Jury Charge (Criminal), "Testimony of a Cooperating Co-Defendant or Witness." (revised 2/6/06). Here the judge essentially conducted an informal charge conference in chambers, and then memorialized what was decided upon on the record. Copies of the proposed charges were distributed to counsel, and their comments solicited. Defense counsel did not object to the omitted sentence, but rather confirmed that the charge was acceptable, both before and after it was read to the jury. Accordingly, we review defendant's argument under the plain error standard, whether it was capable of producing an unjust result. R.2:10-2.

Ordinarily, the guilty plea of a co-defendant is inadmissible as substantive evidence of defendant's guilt in a separate trial. State v. Stefanelli, 78 N.J. 418, 430 (1979). This exclusion is rooted in the principle that a defendant "'is entitled to have the question of . . . guilt determined upon the evidence against him,'" not on whether a co-defendant has pleaded guilty to a similar charge. Ibid. (internal citation omitted). Thus, the court is obligated to instruct the jury that the plea may only be considered in evaluating the witness's credibility. Id. at 434. When testimony of a guilty plea is brought to the jury's attention, and no limiting instruction is given, there is a strong likelihood that the testimony will be misused. Id. at 435. Accordingly, the trial court's failure to give an instruction restricting the use of a guilty plea to the issue of credibility is usually important in determining whether the instruction was erroneous. Ibid.

The Supreme Court's analysis in Stefanelli is instructive. Although the Court held that the trial judge erred in omitting an instruction regarding the use of a co-defendant's guilty plea, the Court determined that the error was harmless. In Stefanelli, the State offered the testimony of two co-conspirators, one of whom, Cicala, had pleaded guilty to conspiracy. The prosecutor, in an apparent attempt to refute the defense theory that the victim, Bruno, had orchestrated the burglary to defraud his insurance company, stated the following in summation:

Bruno burglarized his own home, it never happened, and yet a young man named Joseph Cicala pleaded guilty to conspiring to break, enter and commit larceny inside the Bruno home. [Defendants] said it never happened, you see. Mr. Cicala pleaded guilty to something that didn't happen. Ladies and gentlemen, isn't your intelligence being insulted by an argument like this? I mean, aren't these defendants talking down to you as if you were a bunch of five[-]year[-]old children?

 

[Id. at 426-27.]

 

The trial court took no steps to correct the remark, and failed to provide a limiting instruction in its final jury charges. Id. at 435, 437. Rather, the court gave a general instruction advising the jury that the plea could only be considered to determine the witnesses' credibility. Id. at 427. The Supreme Court expressed concern over the trial court's failure to properly instruct the jury, noting in particular that "[t]he prosecutor, in effect, told the jury that it was an insult to their collective intelligence to believe that there would have been a guilty plea by Cicala if there had been no conspiracy." Id. at 435. Nevertheless, the Court found that the failure to appropriately instruct the jury did not prejudice the defendant, specifically because his involvement was adequately established by other evidence at trial and the co-conspirator was thoroughly cross-examined. Id. at 436.

Defendant here relies on our holding in State v. Murphy, 376 N.J. Super. 114 (App. Div. 2005), where we specifically addressed the sufficiency of a similar limiting instruction, and reversed defendant's conviction. In Murphy, two co-defendants testified against the third defendant in exchange for lesser sentences. Id. at 121. During his testimony, one co-defendant volunteered that the defendant had been offered a similar plea agreement to second-degree robbery, which included a reduced sentence. Ibid. The trial court did not instruct the jury as to the limited admissibility of the testimony until the following morning, when it offered a lengthy instruction regarding the plea bargaining process. Ibid. "The instruction 'informed the jury that plea bargaining is an acceptable way of resolving a criminal case where a person is actually guilty of the offense.'" Ibid. The court added, "'a judge can only accept a plea agreement on the record when it's made under oath after the person testifies to the satisfaction of that judge that they are, in fact, guilty of the offense.'" Ibid. The court informed the jury that the "mere fact that a plea offer had been extended to a defendant is not evidence of the defendant's guilt." Ibid.

In its final charge, the court neglected to instruct the jury that it could not use the co-defendants' pleas as substantive evidence of the defendant's guilt, although it emphasized that the pleas could be considered in weighing the co-defendants' credibility as witnesses. Id. at 122. The defendant argued that the omitted portion of the instruction was magnified by the trial judge's informing the jury about the plea bargaining process, and in particular, the statement that a person who pleads guilty is actually guilty of the charged offense. Ibid.

The panel in Murphy acknowledged that our Supreme Court "has not directed that the limiting instruction must also state that the jury may not consider the witness's guilty plea as substantive evidence." Id. at 122. Nevertheless, it held:

Where, as here, . . . two witnesses have testified about their involvement in the criminal episode and have pled guilty to . . . the same offense with which defendant is charged and on trial, and the trial judge has instructed the jury that a guilty plea will not be accepted by a judge unless the judge is satisfied that the witness was guilty of the charge to which he or she pleaded guilty, the limiting instruction must clearly define not only the limited use of the testimony but also the prohibited use of the testimony.

 

[Id. at 122-23.]

 

In particular, the court expressed concern that the trial judge "bolstered" the testimony of the co-defendant when he advised the jury that a guilty plea cannot be accepted unless the judge is satisfied of the defendant's actual guilt. Id. at 123. The court's bolstering of the co-defendants' credibility was amplified by the prosecutor's closing remarks. Id. at 124. The court also noted that the two co-defendants who accepted plea agreements provided the only evidence directly connecting the defendant to the crime, although it did not discuss the trial evidence in depth. Id. at 123.

A similar issue was again considered by our Supreme Court in State v. Adams, 194 N.J. 186, 206 (2008), where defendants asserted error in the trial court's failure to give a limiting instruction concerning the guilty plea of co-defendant Harrison. Specifically, defendants argued that the trial court failed to instruct the jury that Harrison's guilty plea could only be used to assess his credibility, and that the court should have instructed the jury that Harrison's plea could not be used as substantive evidence of their guilt.

The Court first noted that, because defendants did not object to the instructions at trial, the issue would be considered under the plain error rule. Ibid; R. 2:10-2. It further noted that "a defendant may be convicted solely on the uncorroborated testimony of an accomplice." Id. at 207 (citing State v. Begyn, 34 N.J. 35, 54 (1961), overruled in part by State v. Savoie, 67 N.J. 439 (1975)). "However, because of the inherent conflict in such testimony, a defendant has a right, upon request, to a specific jury instruction that the evidence of an accomplice is to be carefully scrutinized and assessed in the context of his specific interest in the proceeding." Ibid. (citations and internal quotation marks omitted). The Court expressly recognized that "[a]lthough a co-defendant's guilty plea may be considered for credibility purposes, it may not be used as substantive evidence of the defendant's guilt." Id. at 208 (citing Stefanelli, supra, 78 N.J. at 430-33). The court then concluded:

In the present case, the trial court should have instructed the jury to carefully scrutinize co-defendant Harrison s testimony, and not to consider his guilty plea as substantive evidence of defendants guilt but only in assessing Harrison s credibility. Defendants, however, neither requested those instructions nor did they object to the instructions that were given. The question then is whether in the context of the trial, the error was clearly capable of bringing about an unjust result.

 

We find no plain error in the court s failure to give a cautionary instruction on the allowable uses of Harrison s guilty plea and his testimony. See Stefanelli, supra, 78 N.J. at 436. At trial, defense counsel thoroughly cross-examined Harrison to challenge his credibility and Harrison s lack of credibility was a major theme in closing arguments for the defense, which asserted that Harrison was a liar. The detailed testimony of Harrison independently established his guilt of the crime and, therefore, his guilty plea added little weight to that testimony. Further, the trial court gave the standard charge on credibility. Under those circumstances, we are satisfied that the "error did not have the clear capacity to produce an unjust result and that it had a minimal effect on the outcome of trial." Id. at 437.

 

[Adams, supra, 194 N.J. at 208-209.]

 

In the present case, we are required to assess defendant's argument, that the trial court erred in neglecting to instruct the jury that it could not use Graziosi's guilty plea as evidence of defendant's guilt, in light of (1) "the totality of the entire charge, not in isolation," Chapland, supra, 187 N.J. at 289; and (2) "the overall strength of the State's case." Ibid; Walker, supra, 203 N.J. at 90. Having done so, we find no plain error in the court's instruction.

We note first that the Model Jury Charge at issue here, entitled "Testimony of a Cooperating Co-Defendant or Witness," cautions that it should not be given except upon the request of defense counsel. The trial court placed on the record the charges that the parties had agreed to during the conference in chambers, and defendant concedes that "it is clear that the charge was given pursuant to defense counsel's request." The charge, as given here, plainly advised the jury that evidence of Graziosi's guilty plea could only be used in determining his credibility. A jury is presumed to understand and follow the court's instructions. See State v. Miller, 205 N.J. 109, 126 (2011).

It is further apparent that inclusion of the Model Charge's final sentence, instructing the jury that it may not use the co-defendant's guilty plea as proof that defendant is guilty of the crimes charged, is not mandatory. Rather, the Model Charge specifically cautions that "[t]here may be circumstances where this last sentence is not appropriate," citing Murphy, supra, 376 N.J. Super. at 122-23. Again, there is nothing in the record to support the conclusion that defense counsel requested that this portion of the charge be given, or objected to its omission. We are particularly cognizant that it might have been a tactical decision by the defense not to request this portion of the limiting instruction. See State v. Krivacska, 341 N.J. Super. 1, 42-44 (App. Div.) (finding that when no limiting instruction was requested by the defense, "to rerun a trial when the mistake could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal"), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002).

Finally, in Murphy, upon which defendant relies, the panel noted that the "two-fold instruction is particularly important in this case because the only evidence implicating defendant . . . was provided by the co-defendants who had accepted plea agreements." Murphy, supra, 376 N.J. Super. at 123 is clearly distinguishable from Stefanelli, supra, where the error was deemed harmless because defendant's involvement was clearly established by other evidence at trial and the co-conspirator was thoroughly cross-examined, and from Adams, supra, where the Court similarly found no plain error since the co-defendant's detailed testimony independently established defendant's guilt, and his guilty plea added little extra weight.

We find the present case more akin to Stefanelli and Adams. Here, independent of his guilty plea, Graziosi gave detailed testimony regarding his knowledge of defendant's scheme to sell imitation drugs and "beat" the victims of such scam, as well as defendant's involvement in both the robbery of Murphy and their subsequent altercation. Chaney and Martin witnessed the second altercation testified to by both Murphy and Graziosi. Additionally, Murphy testified about the roles of defendant and Graziosi in the robbery, and his account was buttressed by Galazin, who placed them together outside the convenience store the night of the robbery. She also provided a description of what defendant was wearing, which was used to apprehend him when he was later observed hopping over fences between streets and houses. Thus, to the extent that the abbreviated jury instruction may have constituted error, we find the absence of the complete instruction here did not produce an unjust result.

 

III.

Defendant next argues that his sentence is "manifestly excessive," and that the court erred in not imposing a sentence closer to "the bottom of the first-degree range." We disagree.

Our review of sentencing decisions is governed by an abuse of discretion standard. State v. Blackmon, 202 N.J.283, 297 (2010). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, we are obliged to affirm. State v. Cassady, 198 N.J.165, 180 (2009). A sentence that adheres to the applicable guidelines should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 608 (2010).

In this case, the appropriate factors were applied and we discern no abuse of discretion by the trial judge. As noted, the trial judge properly took three aggravating factors into consideration: aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk defendant will commit another offense; factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior record; and factor nine, N.J.S.A. 2C:44-1(a)(9), the need for deterrence. No mitigating factor was found. Most notably, the court conducted a thorough analysis of defendant's criminal history, stating:

[A]s a juvenile, defendant has had complaints filed against him on at least 20 occasions and has been adjudicated on 13, primarily for robbery-related offenses. The defendant has been sentenced to six terms of probation and two terms of incarceration. As an adult, defendant has been arrested or had complaints filed against him on at least fifteen occasions.

 

The court noted that several of defendant's adult arrests had resulted in felony convictions, and concluded that defendant had an extensive history with the criminal justice system. We discern no abuse of discretion, and the sentence imposed does not shock our judicial conscience.

Affirmed.