STATE OF NEW JERSEY v. PEDRO COVIL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3931-05T43931-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PEDRO COVIL,

Defendant-Appellant.

______________________________________

 

Submitted May 15, 2007 - Decided July 12, 2007

Before Judges Holston, Jr. and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment No. 04-04-0471.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Seon Jeong Lee, Assistant Deputy Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Pedro Covil appeals from a final judgment of conviction entered following a trial on charges against him and his codefendants James Bright and Gregory Simon. The jurors found defendant guilty of robbery, a crime of the second degree, N.J.S.A. 2C:15-1. Bright was acquitted. The court dismissed the single count of the indictment in which Simon was charged at the close of the State's case. In sentencing defendant, the trial court exercised its discretion pursuant to N.J.S.A. 2C:44-1f(2), and imposed a three-year term of imprisonment, eighty-five percent of that term to be served without possibility of parole as required by N.J.S.A. 2C:43-7.2d(9). The court also imposed a $50 VCCB assessment, a $75 SNSF assessment and a $30 LEOTEF penalty. This appeal followed.

On the evening of May 3, 2003, defendant, Bright and John Doe went to the house Brian Jenkins shared with Simon and three other adults. According to Simon, defendant was visibly upset when he arrived. He told Simon that Jenkins was spreading rumors about him. Simon had heard Jenkins say that he suspected that defendant took marijuana from him. Simon told defendant that Jenkins was upstairs, and defendant and Doe went up to see him.

According to Jenkins, defendant wanted to buy marijuana from him, which he had done in the past. When Jenkins told defendant he did not have any marijuana, defendant showed Jenkins his money. When Jenkins insisted he had none to sell, defendant lifted his shirt as if he were reaching for a gun and ordered Jenkins to put his hands on the floor. Thinking defendant had a gun, Jenkins fled. In the hallway, he saw a masked man carrying an electrical cord. That man grabbed Jenkins, attempted to tie his hands with the cord and forced him to return to his room. The man and defendant pushed Jenkins onto his bed. Defendant held Jenkins while the other man tried to tie him up. Simon came into the room and told defendant and the man to stop what they were doing, at which point they left. Jenkins saw Bright take his camcorder. After the incident, Jenkins discovered that his ring had been taken from the desk next to his bed.

Simon gave a slightly different account. He explained that he came upstairs because he heard arguing. When he entered Jenkins's room, defendant and Jenkins were shouting at one another. Thinking that the argument was going to escalate into a fight, Simon stepped between defendant and Jenkins and told them to "cut it out." He did not see anyone wearing a mask and did not notice an electrical cord. Defendant and Doe left together.

Later the same night, Jenkins was shot. He is now paralyzed as a consequence of that crime. No defendant in this case was charged in connection with the shooting.

Although the trial court ruled that no witness would be permitted to give any testimony about the shooting, Simon's attorney asked an officer to read a question he had asked one of Jenkins's housemates during his investigation of the shooting. The question was: "Are you aware of any motive for the shooting." There was an immediate objection, which the trial court sustained. The court followed that ruling with a clear instruction directing the jurors that this case had nothing to do with a shooting and that none of the defendants in this case had been charged with any crime related to a shooting. Defendant did not move for a mistrial, and the case was tried to conclusion without further reference to that crime.

At the close of the case, defendant asked the court to permit the jury to consider assault as a lesser included offense of robbery. The trial court rejected that request.

Defendant raises the following issues on appeal.

I. THE COURT'S FAILURE TO DECLARE A MISTRIAL UPON THE INTRODUCTION OF THE IRRELEVANT, INFLAMMATORY, AND INCURABLY PREJUDICIAL TESTIMONY ABOUT A SHOOTING DENIED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. U.S.C.A. CONST. AMENDS VI, XIV; N.J. CONST. ART. I, 1, 10. [(NOT RAISED BELOW)]

II. THE COURT'S FAILURE TO CHARGE SIMPLE ASSAULT AS A LESSER-INCLUDED OFFENSE OF ROBBERY WHEN THE FACTS WARRANTED IT DENIED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. U.S.C.A. CONST. AMENDS VI, XIV; N.J. CONST. ART. I, 1, 10.

III. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL BECAUSE THE COURT FAILED TO GIVE AN ADEQUATE INSTRUCTION ON ACCOMPLICE LIABILITY, THEREBY FORECLOSING THE POSSIBILITY THAT THE DEFENDANT COULD BE CONVICTED OF A LESSER-INCLUDED OFFENSE. U.S.C.A. CONST. AMENDS VI, XIV; N.J. CONST. ART. I, 1, 10.

The argument raised in Point I lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

The argument raised in Point II of defendant's brief has merit. The jurors should have been permitted to consider whether defendant was guilty of assault. "When a defendant requests submission to the jury of a lesser included offense, the court is obligated to examine the record and determine whether a rational basis exists for the jury to acquit the defendant of the charged offense and convict him of the lesser offense." State v. Harris, 357 N.J. Super. 532, 539 (App. Div. 2003) (stating the standard in a case involving robbery and assault); see State v. Brent, 137 N.J. 107, 113-14 (1994). Generally, an offense is not deemed to be included in a greater offense when it requires proof of an element not required for conviction of the greater offense. See N.J.S.A. 2C:1-8d; State v. Thomas, 187 N.J. 119, 129 (2006). Although a less serious offense that includes a distinct element is not a "lesser included offense," when the defendant requests a charge on a less serious and related offense, the trial court must submit that offense to the jury if there is a rational basis for acquittal of the more serious and conviction of the less serious of the offenses. Thomas, supra, 187 N.J. at 131-32, 136 n.4; Brent, supra, 137 N.J. at 116. When the possibility of acquittal of the more serious and conviction of the less serious offense is supported by nothing other than "sheer speculation," there is no "rational basis" for submission of the less serious offense. Brent, supra, 137 N.J. at 118.

In this case, there was a rational basis for a verdict of acquittal on robbery and conviction on assault. There was evidence that would permit a reasonable juror to conclude that although defendant had no purpose to take or role in taking Jenkins's property, he was angry with Jenkins, and for that reason, physically menaced him and placed him in fear of imminent serious bodily injury. If the jurors so concluded, they would have a rational basis for finding defendant not guilty of robbery and convicting him of simple assault, a less serious offense.

Robbery is defined in N.J.S.A. 2C:15-1a, which provides in pertinent part:

A person is guilty of robbery, if, in the course of committing a theft, he:

(1) . . . ; or

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

(3) . . . .

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

Assault is defined in N.J.S.A. 2C:12-1, which provides in pertinent part:

a. Simple assault. A person is guilty of assault if he:

(1) . . . ; or

(2) . . . ; or

(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.

The form of simple assault at issue here, which is assault by physical menace, is not strictly included in the related form of robbery, which is robbery including conduct causing the victim to fear immediate bodily injury. Simple assault has two additional elements. First, simple assault requires proof of physical menace, which is not required for robbery. Second, simple assault requires proof that the victim feared "serious bodily injury," but robbery simply requires proof that the victim feared "bodily injury." Because defendant requested submission of the less serious offense, however, the difference in the elements does not change the standard for evaluating the adequacy of the evidence required to submit the charge to the jury.

We conclude that the evidence in this case provided the rational basis that required the court to allow the jurors to consider whether defendant was guilty of simple assault and not robbery. Simon and Jenkins provided that evidence.

If the jurors believed Simon, they could conclude that defendant was angry when he came to the house because he had heard that Jenkins was spreading false rumors about him. They could further conclude that defendant argued with and threatened Jenkins because he was angry, not because he wanted to take or help anyone else take anything from Jenkins.

So viewed, the evidence supported a finding that defendant's aggression was not related to theft. There is further support for that conclusion in the absence of any evidence that defendant demanded, looked for or took anything after threatening Jenkins. Bright was seen with the camcorder and found with the ring. Defendant, if Jenkins was believed, was busy holding Jenkins down.

While the evidence was adequate to permit the jurors to infer that defendant and Bright were working together to take what they could from Jenkins and that defendant's menacing occurred during the course of that theft, the evidence did not compel that conclusion. A reasonable juror could infer that defendant was on a mission driven by anger, and Bright, who was the person seen with Jenkins's camcorder and found in possession of his ring, acted alone and without defendant's purposeful cooperation or assistance in taking that property. See N.J.S.A. 2C:2-6c; N.J.S.A. 2C:15-1a. On that view of the evidence, there was a rational basis for acquitting defendant of robbery because he was not involved in a theft, attempted theft or flight from a theft when he placed Jenkins in fear of bodily injury. N.J.S.A. 2C:15-1a(2).

There was also a rational basis for a finding that defendant was guilty of simple assault by physical menace. Jenkins explained that defendant ordered him to place his hands on the floor while lifting his own shirt as if he were about to remove a gun from his waistband. Believing that defendant had a gun and would use it to shoot him, Jenkins ran from his room.

Jenkins's testimony was sufficient to permit the jurors to find that he, due to defendant's demand and physically menacing gesture, was "in fear of imminent serious bodily injury." A reasonable fear that one is about to be shot is sufficient to establish "fear of imminent serious bodily injury." Serious bodily injury is "bodily injury [that] creates a substantial risk of death or [that] causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b; see State v. Drayton, 114 N.J. Super. 490, 492-93 (App. Div. 1971) (discussing the requirements for a conviction of assault by menacing under prior law and noting that the "apparent present ability" to inflict such injury is sufficient if the person assaulted has "a well-founded apprehension of peril" and discussing threats that give rise to an "expectation of bodily harm or death"); II Final Report of the New Jersey Criminal Law Revision Commission, The New Jersey Penal Code: Commentary 2C:12-1 at 9, 176 (1971) (noting that the form of assault by physical menace that is codified in N.J.S.A. 2C:12-1 is consistent with prior law).

In Harris, the evidence was adequate to require the court to instruct the jurors on both assault and robbery because the jurors could have found that defendant's theft and threat to use a firearm were discrete and unrelated events. 357 N.J. Super. at 541. We concluded that the court erred by not permitting the jurors to consider both offenses. Ibid. Noting that "the jury was placed in a position where it either had to find defendant guilty of armed robbery or acquit him entirely of any offense relating to the . . . confrontation," we determined that the defendant was entitled to a new trial. Ibid.

The jurors in this case were confronted with the same improperly limited choice as the jurors in Harris. They could find defendant guilty of robbery or let him avoid all criminal responsibility for placing Jenkins in imminent fear of serious bodily injury by physical menace. Accordingly, we must reverse and remand for a new trial.

Defendant also argues that the charge on complicity was flawed. Because we are reversing defendant's only conviction on the ground that jurors were not permitted to consider simple assault, there is no reason to address that issue. Because a judgment of acquittal on the crime of conspiracy to commit robbery was entered at the close of the State's evidence, we note that the Supreme Court's recent decision in State v. Samuels, 189 N.J. 236, 252-55 (2007), provides guidance on the relationship between conspiracy and the various bases on which a defendant may be held accountable for the conduct of a codefendant pursuant to N.J.S.A. 2C:2-6. Samuels provides the guidance that will permit the court to fashion an appropriate jury instruction on remand in this case.

 
Reversed and remanded for further proceedings.

Simon was charged with hindering apprehension, N.J.S.A. 2C:29-3a. The trial court also dismissed the following charges against defendant and Bright on the ground that there was inadequate evidence: conspiracy to commit armed robbery, a crime of the second degree, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); armed robbery, a crime of the first degree, N.J.S.A. 2C:15-1 (count two); possession of a weapon, an electrical cord, under circumstances not manifestly appropriate for its use, a crime of the fourth degree, N.J.S.A. 2C:39-5d (count three); possession of a weapon, the electrical cord, with purpose to use it unlawfully against another, a crime of the third degree, N.J.S.A. 2C:39-4d (count four).

There is no evidence that Jenkins was injured or suffered pain as a result of this encounter.

In Harris, the defendant had not requested the instruction below, and we applied the more stringent "clearly indicated" standard that is applicable when the question is whether the court is required to give the instruction sua sponte. 357 N.J. Super. at 541.

(continued)

(continued)

12

A-3931-05T4

July 12, 2007