STATE OF NEW JERSEY v. NIREIL A. LOGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5181-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NIREIL A. LOGAN, a/k/a

NIRELL ANDREW LOGAN,

TERRELL WILSON, TERREL WILSON,

KENNETH L. LOGAN,

Defendant-Appellant.

__________________________________

April 8, 2014

Submitted March 18, 2014 Decided

Before Judges Messano and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-12-2848.

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

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

PER CURIAM

Defendant was the subject of a multi-count indictment,1 all arising out of a single incident that occurred in Irvington on August 22, 2010. During the course of the trial, the prosecutor dismissed some counts, the court merged others, and the jury acquitted defendant of several counts. Defendant was convicted of two counts, namely count five, first-degree carjacking, N.J.S.A. 2C:15-2, and the merged count seventeen, second-degree conspiracy to commit robbery and burglary, N.J.S.A. 2C:5-2. For carjacking, defendant was sentenced to twenty years imprisonment, subject to an eighty-five percent parole disqualifier and five years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the conspiracy count, defendant received a concurrent seven-year NERA sentence, with an eighty-five percent parole disqualifier and three years parole supervision.

On appeal, defendant raises two arguments:

POINT I

THE TRIAL JUDGE ERRED IN FAILING TO CHARGE THEFT AS A LESSER INCLUDED OFFENSE OF CARJACKING, AS THE EVIDENCE CLEARLY INDICATED THE POSSIBILITY THAT THE DEFENDANT, IF GUILTY, WAS GUILTY OF THEFT AND NOT CARJACKING. (Not Raised Below)

U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, para. 10.

POINT II

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

We reject defendant's arguments and affirm.

At about 5:30 to 6:00 p.m. on August 22, 2010, during daylight hours, William Bernard McDuffie arrived at the apartment of his friend, Brenda Baucum, who was home with her six-year-old daughter. McDuffie had driven there in his car, which he parked on the street in front of the apartment. The car and surrounding area were within view of the security camera of a nearby grocery store, which captured many of the events relevant to this case. The video was played for the jury, and we have viewed it as well.

Soon after McDuffie arrived, there was a knock at the door. Upon opening it, three men with guns drawn pushed their way in. McDuffie and Baucum both recognized two of the men as defendant and Juquan Walker. They were not familiar with the third man.

The dispute here involved drug dealing activities and drug money. The intruders demanded that McDuffie tell them where the money was and where the stash was. McDuffie insisted he had no money and there were no drugs stashed in the apartment. The men forced him into the bathroom, made him disrobe, and beat him severely, kicking him, punching him, pistol whipping him, and striking him with a hammer, causing injuries to his jaw and elbow. The assailants took from McDuffie his wedding band and car keys.

Soon thereafter, there was another knock at the door. One of the intruders opened it to find William Conway there. They "snatched" him and pulled him inside. Conway was a known drug dealer. Indeed, he (as well as McDuffie and Baucum) testified at trial and acknowledged that he was outside in the immediate area of the apartment selling drugs that day, and he was depicted doing so on the video. According to Baucum, Conway was a distant cousin of hers and sometimes slept over on her couch. According to Conway, he and Baucum were not related by blood but they had grown up together and were like family.

The three assailants made demands of Conway similar to those they had made of McDuffie. Conway told them he was now selling drugs for another individual, and that he had no money or stash at the present location. The assailants ordered Conway to disrobe, and they beat him in the same manner as they had beaten McDuffie, inflicting significant injuries on him.

The assailants told Conway they were going to take him for a ride, apparently to the other drug dealer for whom Conway was selling. In preparation for that ride, defendant went outside, and, using the car keys taken from McDuffie, opened the trunk of McDuffie's car and threw a number of items out onto the sidewalk, leaving the trunk wide open. Defendant then went back into the apartment and told Conway they were going to put him in the trunk of McDuffie's car, and they were going to drive to the location of the drug dealer for whom he was now working. According to McDuffie, the assailants said they were going to kill both McDuffie and Conway.

McDuffie and Conway had put their clothing back on. Defendant escorted Conway outside, intending to put him in the trunk. As soon as Conway got outside he began to run. He was shot in the back and suffered a severe, life-threatening wound. Conway testified that defendant was the man who shot him, but defendant was acquitted of those counts dealing with the shooting. Indeed, Conway testified that as he lay on the ground wounded, defendant placed his gun to Conway's head and pulled the trigger three times, but the gun malfunctioned and did not fire.

Now defendant determined to force McDuffie into the trunk and, according to McDuffie, planned to drive him somewhere and kill him. McDuffie had come out of the apartment and was heading toward his car, hoping he could get away. Defendant confronted him and ordered him into the trunk. Defendant was not holding his gun, and, rather than submit to defendant's demand, McDuffie engaged in a physical struggle with defendant. They wrestled on the ground. McDuffie pulled defendant's tee shirt over his head and off of him. McDuffie then ran to a nearby store, banging on the window and telling someone inside to call the police. Defendant got into McDuffie's car and, with the trunk lid still wide open, drove it away.

Defendant did not testify or call any witnesses. His defense was that he was not there and was not involved in this incident in any way. His attorney argued in summation that it is common for individuals involved in the criminal milieu to fear a dangerous individual such as the drug dealer for whom Conway was then working. Counsel described that drug dealer as "somebody with pull . . . somebody that can get back at you." Counsel continued: "If you give him up, you don't live so you can't give him up." Counsel concluded his argument thusly:

But when there's a shooting outside your house and the cops are in your house, you're ordered to give up a name, do you give up the person that did it? You can't give up the person that will come back so you give them a patsy, someone harmless that can't get back at you.

Mr. Logan is your patsy, ladies and gentlemen.

Defendant's first point of argument questions the sufficiency of the jury instruction regarding the carjacking count.2 At trial, defendant did not request the court to charge any lesser included offenses of carjacking. He now argues that the court committed plain error by not charging theft as a lesser included offense, thus compelling the jury to be impermissibly faced with an all-or-nothing choice. We find no merit in this argument.

Defendant was charged with the form of carjacking defined by N.J.S.A. 2C:15-2a(1). Count five specified that defendant, while "in the course of committing an unlawful taking of a motor vehicle, or in an attempt to commit an unlawful taking of a motor vehicle, did inflict bodily injury or use force upon William McDuffie, an occupant or person in possession or control of a motor vehicle."

Defendant argues on appeal that the facts adduced at trial could have provided a rational basis for a finding of mere theft, rather than carjacking, under two different scenarios. First, defendant contends the jury could have found that it was McDuffie who used force against defendant, not the other way around, because McDuffie initiated the struggle with defendant before McDuffie ran away. Second, defendant contends that even if the jury found that defendant was the aggressor, he may have only intended to assault McDuffie and then, after McDuffie ran away, he decided to take the car as an afterthought.

A lesser included offense must be charged, if requested by the defendant, if a rational basis exists for convicting the defendant of the lesser offense and acquitting him of the greater offense. State v. Garretson, 313 N.J. Super. 348, 353 (App. Div.), certif. denied, 156 N.J. 428 (1998). Defendant's argument would require an unrealistic parsing of the events that occurred in this case.

The events occurred on a continuing basis, beginning with the severe beating of McDuffie, during the course of which his car keys were taken from him, followed by the severe beating of Conway. Defendant and his cohorts made clear their intention to use McDuffie's car to transport Conway, McDuffie, or both in the trunk and to cause them further harm, and possibly even kill them. Without interruption in the course of events, the perpetrators marched Conway to the car, with its emptied and open trunk prepared for placing him in it. When he attempted to flee, they shot him. Defendant then ordered McDuffie into the trunk. He resisted, and whether he initiated the physical struggle or not, defendant used force in an effort to fend off his resistance. This, of course, was added to the force used and injury caused inside the apartment while taking the car keys, an event which, standing alone, can provide the necessary predicate for a carjacking offense. See State v. Matarama, 306 N.J. Super. 6, 20-21 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998).

No rational basis existed to allow the jury to separate these continuing events as though they were distinct and unrelated to each other. This single course of conduct would not support an acquittal of the carjacking offense and a conviction of theft.

Notwithstanding our rational basis analysis, defendant's argument is completely untenable under the correct standard of review in this case. If a defendant does not request a lesser included offense, the court need not charge it unless the lesser offense is clearly indicated by the evidence. State v. Denofa, 187 N.J. 24, 42 (2006). As a reviewing court, we are guided under these circumstances by the plain error standard and will not reverse unless any error was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility is sufficient, but it must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). In the context of a jury charge, plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970) (citations omitted).

Applying this standard, we have no hesitancy in concluding that a lesser included charge of theft was not clearly indicated by the evidence in this case. As we have explained, there was not even a rational basis for such a charge. The court did not err in failing to give the charge.

As to defendant's sentencing argument, we first note that he was eligible for an extended-term sentence as a persistent offender. See N.J.S.A. 2C:44-3a. The State moved for an extended term, but the court denied the motion and instead imposed a mid-range3 ordinary-term sentence of twenty years imprisonment subject to NERA.

We find no impropriety in the sentence imposed. The judge's findings regarding aggravating and mitigating factors were based upon competent and credible evidence in the record, the judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, and the sentence is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393-94 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

1 The indictment also charged a co-defendant, Juquan Walker, with multiple offenses. However, Walker pled guilty to a single count and did not go to trial. Therefore, this appeal pertains only to the trial of defendant Nireil Logan.

2 Defendant makes no arguments challenging his conviction for conspiracy to commit burglary and robbery.

3 Carjacking is an enhanced first-degree crime, for which the range of ordinary-term sentences is between ten and thirty years. N.J.S.A. 2C:15-2b.