STATE OF NEW JERSEY v. BRANDON A. KNIBBS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0248-13T2

A-0

A-2308-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRANDON A. KNIBBS,

Defendant-Appellant.

_________________________________

state of new jersey,

Plaintiff-Respondent,

v.

weldin gomez,

Defendant-Appellant.

_________________________________

State of new jersey,

Plaintiff-Respondent,

v.

juan ortega,

Defendant-Appellant.

_________________________________

December 17, 2015

Submitted October 27, 2015 - Decided

Before Judges Reisner, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Ind. No. 11-12-1806.

Joseph E. Krakora, Public Defender, attorney for appellant Brandon A. Knibbs (Gilbert G. Miller, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Weldin Gomez (Amira Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Juan Ortega (Kisha M. Hebbon, Designated Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the briefs).

PER CURIAM

Defendants Brandon A. Knibbs, Weldin Gomez, and Juan Ortega were tried together on charges arising from the same incident. The State alleged that defendants broke into an apartment near Rutgers University in New Brunswick, attempted to steal money and marijuana from the residents, and threatened and assaulted the victims. However, according to the State, defendants' plan was foiled when the police arrived in response to a 911 call and arrested them.1

The jury acquitted defendants of aggravated assault, simple assault and terroristic threats. The jury also acquitted defendants of second-degree burglary (inflicting or threatening to inflict bodily injury during the course of committing a burglary). However, the jury convicted Knibbs and Ortega of third-degree burglary as a lesser included offense. The jury acquitted all three defendants of second-degree robbery, but convicted them of second-degree conspiracy to commit robbery and burglary. Defendants were also convicted of third-degree attempted theft of a controlled dangerous substance (marijuana) as a lesser included offense of robbery. Gomez, the only defendant to testify, was acquitted of burglary. Ortega, who jumped out a window when the police arrived and was arrested moments later, was acquitted of resisting arrest.

The trial judge merged the lower-degree substantive convictions into the higher-degree conspiracy conviction, and imposed the following sentences. See State v. Connell, 208 N.J. Super. 688, 696-97 (App. Div. 1986). Knibbs was sentenced to six years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Gomez and Ortega were each sentenced to five years in prison subject to NERA, which was the minimum legal sentence for the second-degree conspiracy conviction. All of the defendants appeal from their convictions. Ortega also appeals from his sentence. We have consolidated the appeals for purposes of this opinion.

Knibbs raises the following points of argument on his appeal

POINT I: THE TRIAL COURT'S DENIAL OF DEFENDANT'S POST-TRIAL APPLICATIONS TO MOLD THE SECOND DEGREE CONSPIRACY CONVICTION TO A CONVICTION OF CONSPIRACY IN THE THIRD DEGREE AND THEREBY GRANT A JUDGMENT OF ACQUITTAL N.O.V. ON THE SECOND DEGREE CHARGE VIOLATED DEFENDANT'S RIGHT TO FUNDAMENTAL FAIRNESS AND WAS CONTRARY TO THE COURT'S INHERENT DUTY TO CREATE APPROPRIATE AND JUST REMEDIES; THE CONVICTION SHOULD BE MOLDED AS DEFENDANT REQUESTED, AND IF NOT, REVERSED FOR A NEW TRIAL.

POINT II: DEFICIENCIES IN THE JURY INSTRUCTIONS ON CONSPIRACY AND THE COURT'S ERRONEOUS FAILURE TO PROPOUND SPECIAL INTERROGATORIES TO DETERMINE THE BASIS OF THE CONSPIRACY CONVICTION DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not raised below).

POINT III: THE TRIAL COURT ERRED BY NOT CHARGING CONSPIRACY TO COMMIT ATTEMPTED THIRD DEGREE THEFT AND THIRD DEGREE BURGLARY AS A LESSER-INCLUDED OFFENSE OF THE SECOND DEGREE CONSPIRACY CHARGE IN THE INDICTMENT

POINT IV: THE PROSECUTOR ENGAGED IN MISCONDUCT ON SUMMATION WHICH DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL

POINT V: THE TRIAL COURT IMPROPERLY ADMITTED INADMISSIBLE OTHER CRIMES EVIDENCE AND FAILED TO PROVIDE A LIMITING INSTRUCTION CONCERNING ITS USE. (Not Raised Below).

Gomez raises these points of argument on his appeal

POINT I: THE TRIAL JUDGE ERRED IN FAILING TO MOLD THE CONSPIRACY CONVICTION TO THE JURY'S FINDINGS THAT THE DEFENDANT ONLY CONSPIRED TO ENGAGE IN A THIRD DEGREE OFFENSE.

POINT II: THE TRIAL JUDGE ERRED IN FAILING, SUA SPONTE, TO PROPOUND SPECIAL INTERROGATORIES FOR THE CONSPIRACY COUNT AND IN FAILING TO CHARGE LESSER INCLUDED OFFENSES. (Not Raised Below).

POINT III: THE PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY IN HER SUMMATION REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS.

POINT IV: THE DEFENDANT CAN ONLY BE CONVICTED OF ONE ATTEMPTED THEFT OFFENSE ARISING FROM THIS EPISODE. (Not raised below)

Ortega raises these points of argument on his appeal

POINT I: THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF THIRD DEGREE CONSPIRACY TO COMMIT BURGLARY, IN VIOLATION OF N.J.S.A. 2C:5-2. (Not Raised Below).

POINT II: DEFENDANT'S SENTENCE IS EXCESSIVE AND NOT SUPPORTED BY THE PROPER ASSESSMENT OF AGGRAVATING AND MITIGATING FACTORS.

We affirm each defendant's conviction. We also affirm Ortega's sentence.

I

To place the legal issues in context, we summarize the most pertinent trial evidence. The victims, who were college students, admitted that they sold marijuana and kept marijuana and money in their apartment. Y.A.2 testified that at around 1:00 a.m., he was lying in bed watching a movie, when he heard a "banging" noise from the direction of the apartment's front door and saw the kitchen light go off. Using his cell phone, he called his roommate A.D., who was in a separate bedroom closer to the front door, and asked if A.D. was responsible for the noise. A.D. responded that he was not, but at that moment, through the phone, Y.A. heard hostile-sounding voices coming from the direction of A.D.'s room. One of the voices said, "You sold to my brother." Believing that intruders were on the premises, Y.A. dialed 911 and reported a break-in.

According to Y.A., as he was speaking to the 911 operator, four masked men entered his bedroom, demanding to know where he kept his money and supply of marijuana. He ended the call, but the 911 operator called him back. The 911 calls, which were recorded, captured not only Y.A.'s request for the police but the shouts of the intruders demanding to know "where['s] the weed at." The 911 tape also captured the swift arrival of the police, who entered Y.A.'s room shouting, "Don't move . . . Put your hands up."

Y.A. testified that when the police arrived, two of the intruders were wrestling with him on the bed, trying to restrain him, while two other intruders were "flipping the room upside down, looking for [his] money and marijuana." He told the intruders he had a bag of marijuana on his bedside table. Y.A. testified that the men overturned the table in their search. A.D. offered similar testimony, recounting that the intruders burst into his room demanding that he tell them the location of his marijuana and cash. A.D. testified that the intruders also punched him and threatened him.

There was evidence that, in addition to ransacking Y.A.'s and A.D.'s bedrooms, the intruders broke into a third roommate's locked bedroom and searched his room as well. The third roommate was away at the time. The police found a blue backpack on the kitchen counter, containing several bags of marijuana, a Buck knife, and a Perth Amboy public schools transportation I.D. card. There was testimony from the victims that the backpack did not belong to the apartment's residents, and that the marijuana in the backpack was stolen from A.D.'s room. There was also evidence that Gomez, Ortega and the fourth intruder, Little, lived in Perth Amboy. After the police arrived and unmasked the intruders, Y.A. and A.D. both told the police that they recognized Knibbs, who was a friend of A.D. In addition, A.D. testified that when one of the intruders stated to him, "[y]ou sold weed to my brother," he recognized Knibbs's voice.

There were many inconsistencies in the victims' various statements to the police, particularly with respect to the extent of their drug dealing activities. The victims also admitted that they got a good "deal" on their own criminal charges, and they admitted that they added some incriminating details to their versions of events after the charges against them were resolved.3 However, the police and the 911 tapes provided the most critical evidence supporting defendants' convictions.

According to the police witnesses, when they arrived at the house in response to the 911 call, they found the front door open and observed that it was damaged and appeared to have been forced open. They heard sounds of a struggle toward the back of the apartment. On entering Y.A.'s bedroom, they observed four men with their faces covered.4 One or two of the masked men were restraining Y.A., who was lying on the bed. The table in Y.A.'s room was overturned. One of the masked men, later identified as Ortega, jumped out an open window shortly after the police arrived. When searched, Gomez had a bag of marijuana in the waistband of his pants.

The police also observed and photographed the damaged lock on the door of the third roommate's bedroom. Consistent with A.D.'s testimony that one of the intruders punched him in the face, the police testified that A.D. had a bloody nose and there was blood on the sheets of his bed. In the apartment, the police found numerous small bags of marijuana, drug paraphernalia, and both cash and drugs in a locked safe. The police also found the blue backpack containing the knife, several bags of marijuana, and the Perth Amboy identification card.

On the other hand, neither the victims nor the police could identify which of the defendants injured A.D., or which of them restrained Y.A. on his bed. A.D. could not identify the intruder who, he testified, threatened to blow his head off if he looked up at them. Nor could the police identify the owner of the knife and the backpack.

In his testimony, Gomez, who was nineteen at the time of the trial, claimed that he was an innocent bystander in the wrong place at the wrong time. Gomez testified that he was at home with his wife and child in Perth Amboy, when his good friend Ortega called him at 1:00 a.m. and invited him to come out and smoke marijuana. Ortega and two men Gomez had never met before (the two strangers) picked him up in Ortega's car, and the four of them drove to New Brunswick to buy marijuana. Gomez testified that Knibbs gained entry to a house located a block or two away from where the car was parked, but he did not observe how Knibbs gained entry. The four men then entered the house, and the two strangers began arguing with one of the residents.

Gomez testified that when the police unexpectedly arrived, he walked toward the back of the apartment and entered a darkened room. One of the strangers threw him a bag of marijuana and told him to hold it. According to Gomez, he tried to cover his face when the police arrived, because he was afraid. He denied breaking into the house or harming any of the residents.

II

After the trial, defendants moved for a judgment of acquittal notwithstanding the verdict or for a new trial. They contended, for the first time, that on the verdict sheet the court should have asked two separate questions about conspiracy to commit burglary and conspiracy to commit robbery, instead of combining them in one question (whether defendants were guilty of conspiracy to commit robbery and burglary). Defense counsel contended that because the jury found that defendants did not commit robbery and did not commit any theft offenses involving force or violence, the jury would not have intended to convict defendants of any second-degree crimes. Defendants contended that, had conspiracy to commit robbery been presented to the jury as a separate question, they would have acquitted defendants of that charge.

Defendants also argued that, in addition to separating the conspiracy questions as to robbery and burglary, the court should have charged the lesser included conspiracy offenses of conspiracy to commit third-degree burglary and conspiracy to commit theft or conspiracy to commit "attempted theft." Defendants argued that the court should either grant a new trial or should mold the verdict to conform to the jury's likely intent, and convict defendants of third-degree conspiracy to commit burglary.

In response, the prosecutor argued that there was no plain error, and that the verdict was not inconsistent and was rationally based in the evidence. She contended that, because no one could say which defendant threatened or assaulted the victims, the jury may have decided to acquit each defendant of the offenses (including second-degree burglary and robbery) that involved actually committing threats or assault. However, the jury could readily have found that defendants all conspired to commit crimes that involved threats or use of force, i.e., second-degree burglary and robbery, and the evidence supported that verdict. The prosecutor also pointed out that inconsistent verdicts were legally permitted.

In a lengthy oral opinion, Judge Diane Pincus, who was the trial judge, agreed with the prosecutor's arguments. The judge first noted that the jury question posed was consistent with the indictment, which accused defendants of "conspiracy to commit robbery and burglary, second degree." She recounted the highly incriminating trial evidence in detail. The judge also recalled the many hours that the court and counsel had spent discussing the jury charge and the verdict sheet, and noted that none of the attorneys requested any of the charges that they were now advocating. After thoroughly reviewing the applicable law concerning the court's obligation to charge lesser included offenses when requested and not requested by counsel, see State v. Savage, 172 N.J. 374, 396-97 (2002), the judge concluded that there was no plain error in the charge or the verdict sheet.

Judge Pincus reasoned that the evidence clearly supported a finding that defendants intended to commit a home invasion robbery, and "the facts adduced at trial do not support" the lesser included charges, which defense counsel were belatedly arguing should have been given.

None of the Defendants put forth a defense at trial that would give rise to a rational basis for finding that the Defendants only conspired to commit a burglary and a theft. The testimony belies this request. At 1:00 a.m. Defendants break [in] the door, punched [A.D.] in the nose, [Y.A.] was restrained in the bed, both were threatened. The officers saw defendants with their faces covered restraining [Y.A.]. They saw blood on the sheets, which resulted from [A.D.] being punched in the face.

The evidence in this case supported the charge of conspiracy to commit robbery and burglary. . . . There was not a rational basis in the evidence for finding the Defendants guilty of the lesser included offense of conspiracy to commit burglary or theft. As to Defendant[s'] argument that the verdict was inconsistent, according to the court in State [v.] Burnett[,] 245 N.J. Super. 99 [(App. Div. 1990), certif. denied, 126 N.J. 333 (1991)], a lack of consistency does not necessarily indicate that a jury was unconvinced of the defendant's guilt. To the contrary, the jury's returns of an inconsistent verdict may represent an exercise of leniency or nullification. And although the jury has no right to return verdicts resulting from compromise, they do have the power to do so.

Judge Pincus also agreed with the State that, because defendants all had their faces covered, and the victims could not identify who assaulted or threatened them, it was "understandable as to why the jury did not convict individual Defendants of the second-degree burglary, robbery, assault[,] and charges of terroristic threats." The judge reasoned, however, that "there was certainly substantial proof that all four Defendants conspired to" commit robbery and burglary. The judge also noted that the verdict was not based solely on defendants' testimony. The police testimony corroborated the most important details, including the four masked men in Y.A.'s bedroom, two of whom were seen restraining him on the bed, and the evidence of D.A.'s bloody nose and blood on his bedsheet. The judge further reasoned that the court had "no duty to instruct the jury sua sponte as to the lesser included charge, because the evidence did not clearly indicate or warrant such a charge."

In a motion for reconsideration, defendants presented the additional argument that the jury question on conspiracy, and the indictment, were "duplicitous," because they combined two separate and distinct offenses (burglary and robbery). The judge rejected that argument, reasoning that a conspiracy can have multiple unlawful objects, and hence a conspiracy charge may include those multiple criminal objects, "as long as the acts relate to a single transaction or common plan."

Quoting N.J.S.A. 2C:5-2(c), the judge reasoned that "[i]f a person conspires to commit a number of crimes[,] he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship." The judge also considered that if an "alleged conspiracy is but one overall collusive arrangement, it must be treated as such by the prosecution." (Quoting State v. Ferrante, 111 N.J. Super. 299, 303 (App. Div. 1970)). Judge Pincus concluded that, based on the evidence, "the burglary and the robbery were the objectives of the same agreement and were part of a continuous conspiratorial relationship." Hence the State properly included burglary and robbery in the same conspiracy charge.

On this appeal, in Knibbs's points I, II and III, Gomez's points I and II, and Ortega's point I, defendants repeat arguments made in their post-trial motions. They also allege errors in the jury instructions and argue on various grounds that the conspiracy conviction should have been reduced to a third-degree conviction. We affirm on these points, for the reasons Judge Pincus stated in her oral opinions issued on March 13, 2013 and June 20, 2013, and for the reasons stated below. To the extent not specifically addressed, defendants' arguments are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2).

Like Judge Pincus, we apply the plain error standard to claims concerning jury instructions not requested at trial. R. 1:7-2; R. 2:10-2. Having read the entire trial transcript, we find no plain error in the jury charge or the verdict sheet. Even disregarding the victims' testimony, the evidence overwhelmingly supports the verdict. On this record, we find no possibility that the verdict was a miscarriage of justice. R. 2:10-2.

At the heart of defendants' myriad arguments is their contention that the verdicts are inconsistent and not supported by the evidence. We disagree. Inconsistent verdicts are permissible, and "[w]e do not speculate why a jury acquits." State v. Banko, 182 N.J. 44, 54 (2004); see United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). Rather, we inquire whether there is sufficient evidence to support the convictions returned by the jury. Banko, supra, 182 N.J. at 55.

Although we need not resolve or explain away inconsistencies in a verdict, we find no inconsistency in this verdict. See Banko, supra, 182 N.J. at 54. To the contrary, it is highly likely that the verdict reflected the victims' inability to identify which defendant threatened or assaulted them, and in Gomez's case, a belief that he did not personally force the apartment door open. The verdict may also have reflected jury leniency based on disapproval of the victims' illegal activities. We also agree with Judge Pincus that defendants were properly charged with only one conspiracy, having two criminal objects each of which comprised a second-degree offense, and there was no error in the jury question on conspiracy. See N.J.S.A. 2C:5-2(c).

For similar reasons, we find no merit in defendants' arguments that the conspiracy verdict should be merged with defendants' other convictions or should be molded to reflect a lower degree crime because defendants were only convicted of third-degree substantive offenses. A defendant "may not . . . be convicted of more than one offense if one offense consists only of a conspiracy . . . to commit the other." N.J.S.A. 2C:1-8(a)(2). On the other hand, "if the conspiracy proven has criminal objectives other than the substantive offense proven, the offenses will not merge." State v. Hardison, 99 N.J. 379, 380 (1985). That is the situation here.

The evidence strongly supports a conclusion that defendants planned and were in the process of carrying out a strong-arm home invasion robbery, when the police burst in and arrested them. Because the police interrupted defendants before they could complete their crimes, and no one could identify which defendants assaulted and threatened the victims, there was an entirely plausible basis for the jury to convict defendants of conspiring to commit more serious crimes than the jury convicted them of actually committing. The judge clearly instructed the jury that to prove conspiracy, the State did not have to prove that defendants actually committed the crimes of robbery and burglary.

Defendants' reliance on Hardison, supra, 99 N.J. at 391, is unavailing. Their invocation of State v. Diaz, 144 N.J. 628 (1996), a case that addressed possession of a weapon for an unlawful purpose rather than conspiracy, is likewise misplaced. Their related argument, that the judge should have asked the jury to complete special interrogatories concerning the basis for the conspiracy verdict, see Diaz, supra, 144 N.J. at 644-45, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

III

In Knibbs's point IV and Gomez's point III, they contend that in the State's summation the prosecutor inaccurately told the jury that the victims were not required to testify against defendants in order to obtain the conditional discharges of their own drug charges. In the prosecutor's remarks, she stated that

the victims testified that they didn't give any promises or get any promises to come here and testify, or to give statements. They worked out their deal in municipal court with their attorneys. They successfully completed . . . their one-year conditional discharge.

Her remarks were made in response to repeated comments from defense counsel, in their summations, that the victims gave exaggerated and false testimony at the trial in order to help the prosecution, which had extended them leniency. Defense counsel reminded the jury that the victims had stated they got a great "deal" on their drug charges. However, neither victim testified about any specific plea deal with the Prosecutor's Office.

The record does not contain any documentation concerning the circumstances under which the victims' drug charges were downgraded to municipal court and resolved by conditional discharge. In response to the prosecutor's objections to certain questions defense counsel asked the victims, the judge stated that "[t]here is no specific deal here." During a sidebar discussion after defense counsel objected to the prosecutor's summation, the judge repeated that there was no evidence of any agreement between the Prosecutor's Office and the victims, such that it was accurate to state that there was no quid pro quo.

We conclude that, taken in context, the prosecutor's remarks were a fair response to defense counsel's arguments. The defense implied to the jury that there must have been some sort of plea deal, even if informal, and that in any event, the victims may have testified more favorably to the State in response to the lenient treatment they received. The prosecutor was entitled to point out that the victims had already complied with the conditions of their municipal court dispositions, that the charges had been discharged, and hence that their sentences did not depend on the way they testified at this trial.

IV

Defendants' remaining arguments warrant little discussion. During A.D.'s testimony, he stated that a week before the break-in Knibbs complained to him about having money problems. In response, A.D. had given Knibbs an ounce of marijuana so that Knibbs could sell it, keep some of the proceeds, and repay A.D. with the remaining proceeds. There was no objection to this testimony, but Knibbs now argues that the information that he intended to sell the marijuana was prejudicial evidence of other crimes. See N.J.R.E. 404(b). We find no plain error. See State v. Macon, 57 N.J. 325, 333 (1971).

As a defense tactic, it was beneficial not to object to this testimony, because it was part of the defense strategy of vilifying the victims as being big-time drug distributors. In fact, on cross-examination, defense counsel explored the same subject. The defense also sought to show that when Knibbs went to the victims' apartment on the night of the incident, it was for the peaceful purpose of obtaining some marijuana to smoke. We conclude that the defense invited this testimony and did not seek a limiting instruction for understandable tactical reasons. See State v. Brown, 138 N.J. 481, 535 (1994). Moreover, we find no basis in this record to conclude that the testimony had the clear capacity to cause the jury to convict Knibbs when they otherwise would have acquitted him. See R. 2:10-2.

We find no merit in Gomez's argument that he could only be convicted of one attempted theft offense because the police only found him to be in possession of one bag of marijuana. There was evidence that defendants separately attempted to steal marijuana from each victim. Defendant's argument warrants no further discussion. R. 2:11-3(e)(2).

Finally, we find no abuse of discretion or other error in the five-year NERA sentence imposed on Ortega. See State v. Bieniek, 200 N.J. 601, 608 (2010). That was the lowest possible term that could have been imposed for a second-degree offense. See N.J.S.A. 2C:43-6(a)(2). For the reasons stated by Judge Pincus, we agree that there was no basis to sentence Ortega as a third-degree offender. No further discussion is warranted on this point. R. 2:11-3(e)(2).

We affirm the sentence imposed on Ortega, and we affirm the convictions of Ortega, Knibbs, and Gomez.

Affirmed.

1 A fourth individual, Ja'Quay Little, was also arrested at the scene and tried along with these three defendants. However, he is not a party to these appeals.

2 The victims' names are irrelevant to our decision of this appeal.

3 A.D. and Y.A. were initially charged with possession of more than fifty grams of marijuana. However, the charges were eventually downgraded to possession of less than fifty grams of marijuana. They each received a conditional discharge in municipal court, and successfully completed the program before defendants' trial began.

4 Officer Epstein explained that several of the suspects were wearing hats with eyeholes, or other forms of clothing over their heads and faces, in a way that functioned as masks. Although it was August, Little was also wearing gloves.