STATE OF NEW JERSEY v. FAHEEM PATTERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0275-04T40275-04T4

A-0471-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FAHEEM PATTERSON,

Defendant-Appellant.

_________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JIMMIE TYSON,

Defendant-Appellant.

_________________________________

 

Submitted November 14, 2005 - Decided

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County,

03-08-2823.

Yvonne Smith Segars, Public Defender, attorney for appellants (Michael Confusione, Designated Counsel, of counsel and on the brief in A-0275-04T4; Kevin G. Byrnes, Designated Counsel, of counsel and on the brief in A-0471-04T4).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Joan E. Love, Assistant Prosecutor, of counsel and on the brief in A-0275-04T4; Sara A. Friedman, Special Deputy Attorney General, Assistant Prosecutor, of counsel and on the brief in A-0471-04T4).

PER CURIAM

These two appeals, calendared back-to-back, arise from an indictment returned by an Essex County Grand Jury on August 22, 2003. That indictment charged co-defendants Faheem Patterson and Jimmie Tyson with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Count Three); second-degree possession of a handgun with a purpose to use unlawfully, N.J.S.A. 2C:39-4a (Count Four); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Five).

Co-defendant Zenobia Winbush was indicted on the same counts but pled guilty to fourth-degree receiving stolen property in exchange for testifying for the State and a recommendation for a probationary sentence.

On May 12, 2004, a jury trial commenced against both defendants. During the trial, the State's motion to amend the indictment to substitute Officer Joseph Alston's name for Officer William Coley on the resisting arrest charge was granted. Both defendants' motions for mistrial were denied. The jury found defendants guilty on all counts.

At sentencing, the judge merged defendants' conspiracy to commit robbery convictions and possession of a weapon for an unlawful purpose convictions with their robbery convictions. On his robbery conviction, Patterson received a twelve-year term of incarceration with a mandatory NERA ten-year, two-month period of parole ineligibility. Patterson also received a four-year term on his conviction of unlawful possession of a handgun and a nine-month term on his conviction of resisting arrest, both to run concurrently with each other and with the term imposed on the robbery conviction.

Tyson was sentenced to a twenty-year term with a mandatory seventeen-year NERA period of parole ineligibility on his robbery conviction. He received concurrent terms of five years with two and one-half years of parole ineligibility on his conviction of unlawful possession of a handgun and eighteen months with nine months of parole ineligibility on the resisting arrest conviction.

On appeal, Patterson raises the following points:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL

POINT II

THE TRIAL COURT'S JURY CHARGES WERE INSUFFICIENT

POINT III

THE TRIAL COURT ERRED IN NOT PROVIDING AN INTERPRETER FOR MENENDEZ, THE STATE'S PRIMARY WITNESS AGAINST DEFENDANT. (Not Raised Below.)

POINT IV

THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL. (Partially Raised Below.)

POINT V

THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON A FLIGHT CHARGE.

POINT VI

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO AMEND THE INDICTMENT AFTER THE CLOSE OF ITS CASE-IN-CHIEF.

POINT VII

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO CROSS-EXAMINE THOMAS HOWARD REGARDING HIS ALLEGED SILENCE.

POINT VIII

THE TRIAL COURT ERRED AND PREJUDICED DEFENDANT IN PERMITTING THE STATE TO INTRODUCE PRIOR STATEMENTS OF ZENOBIA WINBUSH AND IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL.

POINT IX

THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.

Tyson raises the following points:

POINT I

THE DEFENDANT'S RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S BAD FAITH IN INDICTING THE CO-DEFENDANT FOR CHARGES THE PROSECUTOR KNEW COULD NOT BE PROVEN TO OBTAIN TESTIMONY AGAINST THE DEFENDANT IN EXCHANGE FOR DISMISSING THOSE CHARGES. (Not Raised Below.)

POINT II

THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES. (Partially Raised Below.)

A. THE TRIAL COURT FAILED TO INSTRUCT THE JURORS ON THE LESSER-INCLUDED OFFENSE OF THEFT NOTWITHSTANDING AN EXPRESS REQUEST BY COUNSEL AND A RATIONAL BASIS IN THE EVIDENCE.

B. AGGRAVATED ASSAULT (POINTING A FIREARM AT ANOTHER) SHOULD HAVE BEEN INSTRUCTED AS A LESSER-INCLUDED OFFENSE OF ROBBERY WHILE ARMED. (Not Raised Below.)

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT IT COULD CONSIDER THE FACT THAT THE ALLEGED ACCOMPLICE'S GUILTY PLEA SHOWED THAT SHE HAD NO RESPECT FOR THE LAW AND THAT IT MAY DISCREDIT HER TESTIMONY BASED ON THE FACT THAT SHE HAS VIOLATED THE CRIMINAL LAW. (Not Raised Below.)

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF UNEMPLOYMENT EVIDENCE AND AN INSTRUCTION THAT JURORS COULD CONSIDER THE FACT THAT "DEFENDANTS WERE UNEMPLOYED."

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EVIDENCE THAT THE DEFENDANT COMMITTED UNCHARGED CRIMES WITHOUT A PROPER LIMITING INSTRUCTION. (Partially Raised Below.)

A. THE TRIAL COURT IMPROPERLY ADMITTED EVIDENCE THAT THE DEFENDANT COMMITTED A CRIME NOT CHARGED IN THE INDICTMENT.

B. THE TRIAL COURT FAILED TO GIVE THE JURY A PROPER LIMITING INSTRUCTION ON THE PERMISSIBLE AND IMPERMISSIBLE USE OF EVIDENCE THAT THE DEFENDANT COMMITTED UNCHARGED CRIMES. (Not Raised Below.)

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S RULING THAT THE STATE COULD CROSS-EXAMINE DEFENDANTS' ALIBI WITNESS ABOUT FAILING TO COME FORWARD WITH EXCULPATORY EVIDENCE.

POINT VII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO GRANT DEFENDANT'S MOTION FOR A MISTRIAL.

POINT VIII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT INSTRUCTED THE JURY THAT IT COULD INFER A CONSCIOUSNESS OF GUILT FROM "FLIGHT."

POINT IX

THE DEFENDANT INCORPORATES BY REFERENCE THE ARGUMENTS ADVANCED IN THE CO-DEFENDANT'S APPELLATE BRIEF THAT ARE NOT INCONSISTENT WITH DEFENDANT'S ARGUMENTS.

POINT X

THE DEFENDANT'S SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

Except to remand Tyson for resentencing in light of the recent holdings in State v. Natale II, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005), we affirm.

I.

The following facts were adduced at trial. On June 14, 2003, Jose Menendez and Eduardo Recuendo went to a liquor store, Toast of the Town, located at Scotland Road and Central Avenue in Orange. Upon exiting the vehicle, Menendez noticed a female, later identified as Winbush, in the parking lot eliciting their attention. After returning to the parking lot from the liquor store where they purchased beer and cigarettes, they saw Winbush near their vehicle, again trying to gain their attention. At the same time, two men approached Menendez and Recuendo from behind. One of the males, Tyson, pointed a gun at Recuendo, and Patterson punched Menendez in his face. They demanded that Menendez and Recuendo relinquish their keys, money, and the contents of their pockets. Tyson removed something from Recuendo's wallet, while Menendez surrendered his wallet and cell phone to Patterson. The two defendants also took the cigarettes and beer that the victims had purchased and then fled toward the rear of the parking lot. The victims returned to the liquor store and asked a cashier to call the police. When the police arrived, Menendez explained the incident and gave a description of the robbers. Their description was then sent out over the radio to patrol units shortly after 11:00 p.m.

Winbush provided the following testimony. She observed the defendants, whom she referred to as Jay (Tyson) and Fame (Patterson), rob two "Spanish" males in the parking lot of the liquor store. She testified that Tyson pointed a gun at the face of one of the victims and Patterson punched the other victim in the face. Following the robbery, she ran to a nearby train station and both defendants followed her. The three individuals then walked along the train tracks. Winbush informed defendants that she wanted to go home and requested a cell phone so that she could make arrangements to get home. Defendant gave her a cell phone, which did not work at the time. She placed the phone in her purse. The three individuals went to a nearby house where Patterson spoke with several individuals for approximately forty-five minutes. Winbush and Tyson walked to the Dunkin' Donuts on Main Street while Patterson talked with somebody at a bar across the street. Tyson gave Winbush fifteen dollars with which she purchased a soda and food from Dunkin' Donuts. The three then walked down Main Street for approximately ten minutes before a police officer approached them in his vehicle.

Shortly after going on duty, Orange Police Officer Joseph Alston received a description of the robbers over a radio broadcast. At approximately 2:45 a.m., while traveling west on Main Street in his marked patrol unit, Alston observed three individuals matching the description of the robbers, traveling east on foot. Alston approached the three individuals and engaged Winbush in casual conversation, unrelated to the robbery. Noticing that the two males seemed anxious, Alston called headquarters for back-up. He made a U-turn and, as he again approached the suspects, they fled. Alston yelled through the open window and the female suspect stopped. The two males, however, continued to run, turning right onto South Center Street, where Alston blocked them with his patrol vehicle. Alston exited his vehicle, pulled out his service weapon, and ordered Patterson to stop. Patterson complied and Alston arrested him.

Meanwhile, Tyson ran into a nearby alleyway. Officer Charles Eaddy arrived and pursued Tyson into the alleyway. Eaddy found Tyson hiding under a white truck. Tyson was placed in custody and searched. He did not have a weapon on his person at the time. Aware that the alleged crime involved a weapon, Eaddy searched the immediate area and found a 9mm Luger weapon under a nearby vehicle.

Winbush was also placed into custody. The cell phone recovered from Winbush was later identified as the cell phone taken from one of the victims. At headquarters, Detective William Coley informed Winbush of her Miranda rights using a standard form, which Winbush signed. Coley also obtained a written statement from her, which he typed and she read and signed.

A few days after the incident, the police contacted Menendez who came to headquarters, explained the incident, and viewed photos. He viewed photographs, identified Winbush, and signed the back of her picture. He also identified photographs of both defendants, saying that he was eighty-five percent sure that they were the robbers. At trial, Menendez described his robbers. The shorter robber was black, appeared strong, wore a white t-shirt and jeans, and had his hair in braids. The taller robber was described as wearing the same clothing and a hat. At trial, Menendez identified Patterson and Tyson as the robbers. He also recognized photographs of his cell phone that had been taken during the robbery. Menendez described the gun that was used as dark in color and about seven and one-half inches long.

Defendants' alibi witness, Thomas Howard, testified that he and defendants arrived at his home around 7:00 or 7:30 p.m. and sat on the porch for a little while. He further testified that both defendants went to Valley Liquors to purchase Bacardi. After the Bacardi was consumed, both defendants went to Toast of the Town to purchase more alcohol. Howard was unable to testify as to what time the trip to Toast of the Town took place. He also testified that the defendants were with him at his home from midnight until 1:30 a.m., at which time they left with a female who had recently appeared at the house.

Both defendants denied being at the scene at the time the robbery occurred. Patterson testified that he and Tyson went to Toast of the Town before 10:00 p.m. After purchasing alcohol, Tyson spoke with Winbush outside the store for approximately ten minutes. They returned to Howard's house where they stayed until departing with Winbush sometime after midnight. According to Patterson, he was talking with a friend outside of El Bandito's on Main Street while Tyson and Winbush went to Dunkin' Donuts. They were then approached by Alston. Patterson claimed that he ran from the police officer because he had a warrant for driving with a suspended license.

Tyson testified similarly. He denied ever being in possession of the victim's cell phone. He admitted hiding under a parked car and being found by the police. He denied any knowledge about the weapon found near him in the alleyway.

II.

We consider first those points that both defendants raise. Each defendant contends that the judge should have instructed the jury on the lesser-included offense of theft. They also both assert that the judge erred in allowing the state to cross-examine defendants' alibi witness's delay in coming forward and instructing the jury on flight.

Arguing that "[i]f the jury for whatever reason doesn't find that a weapon was involved," Patterson requested that the judge consider charging the lesser-included offense of theft. Patterson, however, conceded in response to the judge's question that that there was no evidence concerning the value of the items taken. Tyson joined in Patterson's request to charge theft as a lesser-included offense. The judge rejected the requests.

N.J.S.A. 2C:1-8e directs that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." See State v. Sinclair, 49 N.J. 525, 540 (1967). In State v. Brent, 137 N.J. 107, 113-14 (1994), the Supreme Court commented on N.J.S.A. 2C:1-8e:

The statute has been characterized and construed as requiring not only a rational basis in the evidence for a jury to convict the defendant of the included offense but requiring also a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense.

When a defendant requests a charge on a lesser offense, the trial judge must focus on the facts in evidence "'to ensure that there is a rational basis for a jury to reject the greater charge and convict of the lesser'" charge. Id. at 116 (quoting Cannel, New Jersey Criminal Code Annotated, comment 12 on N.J.S.A. 2C:1-8 (2005). Moreover, where the evidence reasonably supports defendant's request for a jury charge on a lesser-included offense, a trial court's failure to give it is reversible error. State v. Crisantos, 102 N.J. 265, 276 (1986).

Rather than assert that a gun was not used, both defendants and their alibi witness claimed that defendants were not at the crime scene when the robbery took place. Defendants were charged with armed robbery, N.J.S.A. 2C:15-1b. The only other testimony, that given by Winbush and Menendez, was that the victims were robbed at gunpoint. There is nothing in this record to support a finding that the pointing of a gun and the taking of property were either discrete or independent events or that defendants were no longer in the course of committing the theft. See State v. Harris, 357 N.J. Super. 532, 541 (App. Div. 2003). The only evidence was that the pointing of the gun occurred contemporaneously with the theft. Accordingly, there was neither a rational basis in the evidence for a jury to convict defendants of the included offense of theft nor a rational basis in the evidence for a jury to acquit the defendant of the charged offense.

Equally unavailing is Tyson's contention, raised for the first time on appeal, that the judge should have charged fourth-degree aggravated assault. When the judge inquired whether defendants wanted a charge on aggravated assault, N.J.S.A. 2C:12-1b(4), or "pointing a gun," both argued that there was no evidence to support such an instruction. N.J.S.A. 2C:12-1b(4) provides that a person is guilty of aggravated assault if that person

[k]nowingly under circumstances manifesting extreme indifference to the value of human life points a firearm, as defined in section 2C:39-1f., at or in the direction of another, whether or not the actor believes it to be loaded.

"An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). At trial, Patterson argued, "either the jury believes that a gun was pointed at Mr. Menendez [sic] to rob him -- it doesn't appear to be any testimony that a gun was pointed at him to assault him for any purpose."

Again, the only testimony concerning the use of a gun was that it was pointed at Recuendo while he relinquished the keys, money, and contents of his pockets. We are satisfied that the facts in evidence did not clearly establish the appropriateness of the charge. Moreover, the judge's failure to sua sponte instruct N.J.S.A. 2C:12-1b(4), under the circumstances of this case, was not "clearly capable of producing an unjust result . . . ." R. 2:10-2.

III

We turn to the contention raised by both defendants that the judge erred in permitting the State to cross-examine Howard on his failure to come forward with exculpatory information between the time he became aware of defendants' arrest, a couple of days after the incident, and the date the alibi notice was filed, February 18, 2005. It is permissible to cross-examine an alibi witness's silence if the witness "appears to know of the charges and would naturally be expected to have come forward with the alibi testimony . . . ." State v. Silva, 131 N.J. 438, 442 (1993). Before permitting cross-examination, a proper foundation must by laid by establishing that "'the witness was aware of the nature of the charges pending against the defendant, had reason to know he had exculpatory information, had a reasonable motive to act to exonerate the defendant, [and] was familiar with the means to make the information available to law enforcement authorities . . . .'" Id. at 447-48 (alteration in original) (quoting State v. Silva, 252 N.J. Super. 622, 629 (App. Div. 1991), aff'd, 131 N.J. 438 (1993)).

The trial judge held a Silva hearing, which established the following: (1) Patterson's girlfriend advised Howard about the charges two days following the incident; (2) Howard knew that the robbery had allegedly occurred while he was with both defendants with whom he was close friends (having known each for eight to nine years); and (3) Howard was familiar with the means to make his information available to law enforcement officials because he had been previously charged with a crime and was familiar with the location of the police department. The judge correctly exercised his discretion in permitting the State to cross-examine Howard on his failure to come forward with exculpatory information at an earlier time.

IV.

Both defendants assert that the judge erred in giving the jury instructions on flight. Patterson contends that there was insufficient evidence to support the charge and Tyson argues that the presence of evidence establishing absence of flight negated the appropriateness of the charge. Both arguments lack merit. Evidence of flight by an accused is generally admissible as evidence of consciousness of guilt and is "therefore regarded as probative of guilt." State v. Mann, 132 N.J. 410, 418 (1993) (citing State v. Long, 119 N.J. 439, 499 (1990)); State v. Wilson, 57 N.J. 39, 49 (1970); State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966); State v. Andrial, 203 N.J. Super. 1, 6 (App. Div. 1985)). Flight must be distinguished from mere departure, as departure is not probative on the issue of guilt. Mann, supra, 132 N.J. at 418-19 (citing Sullivan, supra, 43 N.J. at 238-39). "For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." Sullivan, supra, 43 N.J. at 238-39.

Because any inference arising from a defendant's flight impinges on the defendant's presumption of innocence, the trial judge must carefully consider the evidence of flight and decide whether to instruct the jury on the issue. Mann, supra, 132 N.J. at 420. When the instruction is given, the judge must carefully explain the inferences that may be drawn from the defendant's flight. Ibid. An adequate jury instruction conveys that a jury first find that there was a departure and then consider whether the facts support a finding of "motive for the departure, such as attempt to avoid arrest or prosecution, that would turn the departure into flight." Id. at 421 (citing Wilson, supra, 57 N.J. at 49). If the defendant offers an explanation for the departure, the trial judge must "instruct the jury that if it finds the defendant's explanation credible, it should not draw any inference of the defendant's consciousness of guilt from the defendant's departure." Ibid. (citing State v. Leak, 128 N.J. Super. 212, 217 (App. Div.), certif. denied, 65 N.J. 565 (1974)).

The judge properly instructed the jury on the offense of resisting arrest by flight and flight as evidence of consciousness of guilt. Contrary to defendants' contentions, Alston's testimony that both defendants ran after he yelled for them to stop while Winbush complied was sufficient to support the judge's charge on flight. Moreover, we are satisfied from our review of the judge's charge that his instructions were properly given.

V.

We next consider Patterson's contentions on appeal. Patterson argues that the judge erred in denying his motion to acquit. He maintains that there was no evidence of an agreement to support the commission of conspiracy. He also challenges the sufficiency of evidence to support resisting arrest and accomplice liability for the robbery and weapon offenses.

The "broad test" for determination of a motion to acquit "is whether the evidence at that point is sufficient to warrant a conviction of the charge involved." State v. Reyes, 50 N.J. 454, 458 (1967). Specifically, the appellate court is constrained to sustain a trial judge's denial of a R. 3:18-1 motion to acquit at the close of the State's case if, "'viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all'" reasonable inferences, "'a reasonable jury could find guilt of the charge beyond a reasonable doubt.'" State v. Josephs, 174 N.J. 44, 80 (2002) (quoting Reyes, supra, 50 N.J. at 459).

Patterson and Tyson were charged as either principals or accomplices. Whether Patterson actually possessed or pointed the gun, or not, is largely irrelevant, because the evidence showed him to be at least an accomplice. N.J.S.A. 2C:2-6a provides that an individual can be guilty of an offense committed "by the conduct of another person for which he is legally accountable . . . ." Moreover, a person is legally accountable for the conduct of another when he is "an accomplice of such other person in the commission of an offense," or when he is "engaged in a conspiracy with such other person." N.J.S.A. 2C:2-6b(3) and (4). An individual is an accomplice if, "[w]ith the purpose of promoting or facilitating the commission of the offense, he . . . [a]ids or agrees or attempts to aid such other person in planning or committing it." N.J.S.A. 2C:2-6c(1).

Thus, under N.J.S.A. 2C:2-6, accomplice liability attaches when a defendant shares the purpose of the principal who commits the offense charged, State v. Norman, 151 N.J. 5, 32 (1997), cert. denied, 534 U.S. 919, 122 S. Ct. 269, 151 L. Ed. 2d 197 (2001), and the defendant "actually foresee[s] and intend[s] the result of his or her acts," State v. Bridges, 133 N.J. 447, 456 (1993). It is a well-established principle that "distinctions between the culpability and punishment of a principal and accomplice have been abolished, and that an accomplice has equal culpability and is subject to the same punishment as a principal in the crime's commission." In re D.A.C., 337 N.J. Super. 493, 496-97 (App. Div. 2001). Contrary to Patterson's contentions, the record demonstrates sufficient evidence of a conspiracy among the defendants to support the notion that Patterson was also an accomplice of Tyson and was, therefore, liable for any offenses committed by him.

To establish that a defendant is guilty of conspiracy, the State is required to prove beyond a reasonable doubt that the defendant "[a]gree[d] with such other person or persons" to commit the crime, or "[a]gree[d] to aid such other person or persons" in that crime. N.J.S.A. 2C:5-2a(1) and (2). The focus of the inquiry is not on the existence of an actual agreement between the parties, but on defendant's intent. State v. Del Fino, 100 N.J. 154, 160 (1985); Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:5-2 (2005).

In State v. Graziani, 60 N.J. Super. 1, 13 (App. Div. 1959), aff'd o.b., 31 N.J. 538, cert. denied, 363 U.S. 830, 80 S. Ct. 1601, 4 L. Ed. 2d 1524 (1960), the court noted that conspiracy is "rarely capable of proof through direct evidence." The State may prove conspiracy solely through circumstantial evidence. State v. Hardison, 99 N.J. 379, 384-85 (1985); accord State v. Ball, 268 N.J. Super. 72, 109 (App. Div. 1993), aff'd, 141 N.J. 142 (1995), cert. denied, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996). Moreover, "a common purpose and plan may be inferred from a development and a collocation of circumstances." State v. Naglee, 44 N.J. 209, 227 (1965), rev'd on other grounds sub nom., Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967). When the State prosecutes a defendant for conspiracy to commit a first- or second-degree crime, "an overt act is not at issue," rather the "only question is whether a reasonable jury, viewing the State's evidence in its most favorable light, could find beyond a reasonable doubt that defendants, acting with a purposeful state of mind, agreed to commit, attempted to commit, or aided in the commission" of the underlying crime. State v. Sherzer, 301 N.J. Super. 363, 401 (App. Div.) (citing Reyes, supra, 50 N.J. at 459), certif. denied, 151 N.J. 466 (1997).

The evidence amply established that Patterson acted in concert with Tyson and aided or attempted to aid Tyson in committing the crime of armed robbery and the attendant weapons offense. His challenge on appeal centers on credibility, not sufficiency. Simply stated, there was sufficient evidence presented upon which a jury could find beyond a reasonable doubt that both defendants were guilty as either accomplices or principals of first-degree robbery and second-degree conspiracy. Likewise, we are satisfied that there was sufficient evidence to establish that Patterson resisted arrest by flight. N.J.S.A. 2C:29-2a. Patterson's motion for acquittal was properly denied.

VII.

Patterson's next contention that his due process rights were violated by the trial judge's failure to, sua sponte, provide an interpreter for Menendez is devoid of merit. The necessity for an interpreter is entrusted to the sole discretion of the trial court, the exercise of which will not be disturbed absent a manifest abuse. State ex rel. R.R., 79 N.J. 97, 117 (1979). Although Menendez's first language was Spanish, he demonstrated an adequate ability to understand and speak English. His "natural mode of communication [was not] unintelligible." Ibid. On direct examination, he acknowledged, in response to the State's inquiry, that he would alert the prosecutor if he did not understand a question. He demonstrated his ability to understand and speak English throughout a thorough and rigorous cross-examination. Patterson did not object to his testimony in English. There was no error, much less plain error.

VIII.

Patterson next challenges several comments made by the prosecutor during summation, which were not objected to, claiming that they represent prosecutorial misconduct. He also challenges the prosecutor's references to the Public Defender's Office, during her cross-examination of Howard. Those comments were also not objected to at the time they were made. Instead, Patterson waited until the cross-examination was completed before raising an objection. The prosecutor conceded that the references to the Public Defender's Office were inappropriate, mistakenly made, and unintentional. She explained that her references to the Public Defender's Office were inadvertent, as she had been looking at a form that referred to the Office while she was cross-examining Howard. She further explained that it would not happen again. The judge accepted her explanation and a re-direct examination of Howard took place.

The test to determine whether prosecutorial misconduct constitutes reversible error is whether the "misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); see also State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). However, not every imperfection on the part of a prosecutor will require reversal of a conviction. Frost, supra, 158 N.J. at 83. The prosecutor's conduct must be viewed in the context of the entire trial to determine whether defendants were denied a fair trial. Although improper, in our view, in the context of the trial, the prosecutor's references to the Public Defender's Office were not so egregious as to deprive defendants of a fair trial. The remarks were fleeting and isolated. We are convinced that defendants were not deprived of a fair trial by virtue of those remarks and that under the circumstances the remarks were harmless, considering the other evidence of guilt, proven beyond a reasonable doubt. State v. Baker, 228 N.J. Super. 135, 140-41 (App. Div. 1988).

We find it unnecessary to address the specific challenges Patterson raises to the prosecutor's closing arguments. Although a prosecutor has considerable leeway in presenting a summation, State v. Chew, 150 N.J. 30, 84 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), she may not exceed the parameters of "permissibly forceful advocacy" established by decisional law. State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct 1306, 122 L. Ed. 2d 694 (1993); see also State v. Perry, 65 N.J. 45, 47 (1974); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct 673, 21 L. Ed. 2d 593 (1969). Patterson maintains that he was denied a fair trial because the prosecutor made comments during summation that amounted to prosecutorial misconduct. We are satisfied, after carefully considering the record in light of Patterson's arguments, that the closing remarks challenged were not inappropriate and Patterson's contention regarding them lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e) (2).

IX.

Likewise lacking merit are Patterson's contentions that the judge erred in permitting the State to amend the indictment and admit evidence of Winbush's prior consistent statements. Article I, Paragraph 8, of the New Jersey Constitution provides that, except in certain cases not relevant here, "[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury . . . ." Article I, Paragraph 10, provides that "[i]n all criminal prosecutions the accused shall have the right . . . to be informed of the nature and cause of the accusation . . . ." R. 3:7-3(a) requires that an indictment provide "a written statement of the essential facts constituting the crime charged . . . ."

The three-fold purpose of an indictment is: (1) to provide adequate notice so that the accused can prepare a satisfactory defense; (2) to be sufficiently specific for the accused to avoid a subsequent prosecution for the same offense; and (3) to be adequately precise to preclude the trial jury's substitution of an offense that the grand jury did not in fact consider or charge. State v. LeFurge, 101 N.J. 404, 415 (1986); State v. Mello, 297 N.J. Super. 452, 462 (App. Div. 1997). An indictment must allege the essential elements of the crime charged. State v. M.L., 253 N.J. Super. 13, 19 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992); State v. Newell, 152 N.J. Super. 460, 466 (App. Div. 1977).

R. 3:7-4 provides that an indictment may be amended as follows:

The court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. (emphasis added).

Under this rule, the "description of the crime may be changed unless it is 'an essential element.'" State v. Walker, 322 N.J. Super. 535, 553 (App. Div.) (quoting State v. J.S., 222 N.J. Super. 247, 258 (App. Div.), certif. denied, 111 N.J. 588, 589 (1988)), certif. denied, 162 N.J. 487 (1999). Moreover, an indictment may be amended "'to correct an error in form or the description of the crime intended to be charged,'" as long as the original indictment sufficiently informed defendant of the charges against him or her. State v. Orlando, 269 N.J. Super. 116, 138 (App. Div. 1993) (quoting R. 3:7-4), certif. denied, 136 N.J. 30 (1994).

The fifth count charge of resisting arrest erroneously identified Officer Coley rather than Officer Alston as the police officer who attempted to arrest defendants when they fled. The State moved to amend the indictment to correct the misnomer prior to the commencement of Patterson's case and Patterson admitted that he fled from Alston. The amendment did not change the elements of the offense nor did it prejudice the merit of either defendant's defense.

X.

During the trial, both defendants cross-examined Winbush respecting aspects of her direct testimony that did not appear in the written statement she had previously given to the police. The judge correctly permitted the State, over defendants' objections, to rehabilitate its witness by offering prior consistent statements made by the witness "to rebut an express or implied charge . . . of recent fabrication or improper influence or motive . . . ." N.J.R.E. 803(a)(2). Accordingly, both defendants' motions for a mistrial and Patterson's motion for severance, made on the ground that the State's redirect was improper, were correctly denied by the trial judge.

XI.

Finally, Patterson argues that his sentence was excessive. We have considered Patterson's contention and supporting argument and are satisfied that the sentence is not manifestly excessive nor unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

XII

We consider next the remaining independent contentions Tyson raises on appeal. Tyson asserts that the State acted in bad faith when it indicted Winbush for the same offenses because it knew that it could not prove the charges, thus intimidating her into accepting a favorable plea in exchange for testifying against defendant. Essentially, Tyson argues that the State abused the Grand Jury process by indicting a witness on charges that it knew it could not prove in order to gain leverage against the defendants at trial. Because these arguments are raised for the first time on appeal, we consider them in the context of plain error.

Article I, Paragraph 8, of our Constitution provides that "[n]o person shall be held to answer for a criminal offense unless on the presentment or indictment of a grand jury . . . ." A grand jury's principal function is "to indict or not indict." State v. Porro, 152 N.J. Super. 179, 184-85 (App. Div. 1977). "It should indict when a prima facie showing has been made that the accused has committed a crime." Id. at 185. An indictment by a grand jury "is prima facie evidence of probable cause to prosecute . . . ." Helmy v. City of Jersey City, 178 N.J. 183, 191 (2003). Moreover, plea agreements in exchange for testimony against codefendants are within the bounds of prosecutorial discretion. State v. Marshall, 148 N.J. 89, 163, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The State may dismiss charges in the indictment in exchange for a guilty plea to a different crime and/or a lesser sentence. See State v. Freudenberger, 358 N.J. Super. 162, 165-67 (App. Div. 2003) (entering into a plea agreement for aggravated manslaughter, for which defendant was not indicted, in exchange for dismissing charges in indictment and truthful testimony against codefendants); see also In re Nacht, 88 N.J. 372, 373 (1982) (defendant pled guilty to disorderly persons offense and State nolle prosequied a six-count indictment).

Winbush was present with defendants prior to, during, and for many hours following the incident. There was evidence that she was instrumental in distracting the victims and gaining their attention immediately prior to their being robbed at gunpoint. Simply put, there was sufficient proof before the grand jury to establish a prima facie case based upon accomplice liability that she committed the crimes charged against the victims. We find no reason to conclude that the prosecution abused its discretion in presenting Winbush to the grand jury or in entering into a plea agreement based upon her truthful testimony at trial.

Additionally, the plea agreement was disclosed to defendants who cross-examined Winbush extensively concerning it. Moreover, the jury was instructed that it should carefully scrutinize her testimony, that it "may consider whether she has a special interest in the outcome of the case and whether her testimony was influenced by the hope or expectation of any favorable treatment or reward . . . ." There is no evidence of misconduct on the part of the grand jury or the prosecution to overcome the "presumption of validity" of the grand jury proceedings. State v. Ciba-Geigy Corp., 222 N.J. Super. 343, 351 (App. Div. 1988). There is no reason for our intervention.

XIII

Tyson argues that evidence of defendants' unemployment was improperly admitted into evidence. The State counters that the evidence bore directly on the issue of whether defendants and their alibi witness told the truth about buying the liquor they drank all night, "or whether they were uncertain and evasive as to who paid for the liquor, implying that their testimony did not ring true." Neither defendant objected, thus requiring us to consider whether admission of the challenged evidence amounted to plain error.

Generally, evidence of a defendant's unemployment is inadmissible to prove that he or she had a motive to commit a crime. State v. Martini, 131 N.J. 176, 265-66 (1993), overruled on other grounds by State v. Fortin, 178 N.J. 540, 646 (2004); State v. Mathis, 47 N.J. 455, 471-72 (1966), rev'd on other grounds, 403 U.S. 946, 91 S. Ct. 2277, 29 L. Ed. 2d 855 (1971); State v. Terrell, 359 N.J. Super. 241, 247-48 (App. Div.), certif. denied, 177 N.J. 577 (2003); State v. Sherman, 230 N.J. Super. 10, 17 (App. Div. 1988). Such evidence may be admissible, however, if it is clearly relevant to a fact in issue. See State v. Jones, 364 N.J. Super. 376, 386 (App. Div. 2003) (holding evidence of unemployment at time of crime admissible because defendant was wearing security guard uniform during crime, but if not employed as security guard, he had no reason to wear it).

The State cross-examined defendants about being unemployed in an effort to elicit inconsistent testimony about who paid for the liquor and to attack defendants' credibility. Both defendants agreed that the evidence was admissible for credibility purposes and accepted the judge's limiting instruction, which provided:

You have heard evidence that as of June 15th, 2003 defendants were unemployed. You may not use that evidence to infer that they had a motive to rob and therefore must be guilty of the crimes charged. You may only use that evidence in your assessment -- should you choose to do so -- . . . on your assessment of the credibility of the defense testimony that defendants were driving around on June 14th, 2003 spending money.

Tyson now argues that the limiting instruction was insufficient because the fact that somebody is unemployed does not necessarily mean that they would not have money through other sources to pay for food or drink.

The test to be applied is whether the error was "clearly capable of producing an unjust result . . . ." R. 2:10-2. It is dependent upon a finding that there is some degree of possibility that the offending evidence led to an unjust verdict. State v. Macon, 57 N.J. 325, 336 (1971). More than just "any" possibility is required. Ibid. "The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Ibid. We are convinced, from our review of the entire record, including the judge's limiting instruction, that the evidence of guilt was so overwhelming that any prejudice arising from the evidence of defendants' unemployment, even if improperly admitted, was not "clearly capable of producing an unjust result . . . ." R. 2:10-2.

XIV

Prior to opening statements, the State alerted the judge to Winbush's out-of-court statement that she and defendants were going to buy "weed." Finding its probative value minimal and vastly outweighed by prejudice, the judge advised the Prosecutor not to mention that information during her opening statement or elicit it on direct. The judge also warned defense counsel that it might have to re-visit his ruling depending upon what happens during their cross-examination. Thereafter, the State counseled the witness not to mention the statement.

During cross-examination, Patterson's counsel asked Winbush why she was at the Irvington Motor Lodge. Over the State's objection, Patterson's counsel asked Winbush, "People go there for sex and drugs?" The judge sustained the objection. Patterson's counsel continued to inquire into Winbush's intentions in getting into a car with defendants, who were strangers. The State voiced its objection again, pointing out that the judge had cautioned the parties against eliciting testimony concerning the reason Winbush and defendants were together, and argued that the defense had opened the door for it to establish the real reason she was traveling with defendants. The judge then held a hearing outside the presence of the jury. Winbush testified that she got into the car with defendants because both of them wanted "weed" and she knew where they could get it. Thereafter, the judge asked whether defendants wanted a limiting instruction if Winbush were to be asked why she got into the car, and both responded that they did not. Tyson's counsel advised the judge that he was sure that there was going to be further testimony on the issue and that as a matter of strategy he did not want a limiting instruction at that time. The defense persisted in their request that a limiting instruction not be given, and argued in summation that Winbush's testimony was not credible.

Tyson now asserts, for the first time on appeal, that the judge erred in permitting Winbush's testimony concerning the intent to purchase "weed" because it constituted evidence that defendants conspired with Winbush to violate the Controlled Dangerous Substance laws, was unduly prejudicial, and obligated the judge to give a limiting instruction under N.J.R.E. 404(b) and N.J.R.E. 105, notwithstanding their request that one not be given.

We examine first the contention that the judge erred in permitting Winbush to testify that she was with defendants to help them locate drugs. N.J.R.E. 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he [or she] acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

The rule is one of "exclusion" rather than "inclusion," and is intended to bar admission of other crimes when such evidence is offered solely to establish the "forbidden inference of propensity or predisposition." State v. Nance, 148 N.J. 376, 386 (1997). N.J.R.E. 404(b), however, does not preclude other crime evidence in all instances. It allows admission of such evidence when relevant to prove some fact genuinely in issue. State v. Marrero, 148 N.J. 469, 482 (1997); State v. Oliver, 133 N.J. 141, 151 (1993). "Other crime" evidence is admissible where it is (1) relevant to a material issue, (2) similar in kind and reasonably close in time to the act alleged, (3) clear and convincing, and (4) of sufficient probative value to not be outweighed by its apparent prejudice. State v. Cofield, 127 N.J. 328, 338 (1992) (citing Abraham P. Ordover, Balancing The Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).

Moreover, if evidence of other crimes is admitted, the jury must be instructed as to the limited purpose of the evidence and the restricted significance that the jury can attach to it. Marrero, supra, 148 N.J. at 495; see also N.J.R.E. 105. The trial judge's limiting instruction "'should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence . . . .'" Cofield, supra, 127 N.J. at 341 (quoting State v. Stevens, 115 N.J. 289, 309 (1989)).

Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The "opening the door" doctrine is a rule of "expanded relevancy . . . ." State v. James, 144 N.J. 538, 554 (1996).

The "opening the door" doctrine is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection. The doctrine of opening the door allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence. That doctrine operates to prevent a defendant from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing the prosecution to place the evidence in its proper context.

[Ibid. (citations omitted).]

The opening the door doctrine is subject to certain limitations. The doctrine does not permit admission of evidence where the probative value is substantially outweighed by the risk of undue prejudice. Ibid. Moreover, because the doctrine is curative in nature, it can be used only to prevent prejudice, not to inject prejudice. State v. Vandeweaghe, 177 N.J 229, 238 (2003). In short, "'[i]ntroduction of otherwise inadmissible evidence . . . is permitted only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence'" presented. Ibid. (quoting United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir. 1971)) (internal quotations omitted).

Generally, the determination of the admissibility of other-crime evidence is within the trial judge's broad discretion. Marrero, supra, 148 N.J. at 483. Our role is not to substitute our judgment for that of the trial judge, but to decide whether the trial judge pursued a manifestly unjust course. See Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998).

Here, the evidence of Winbush's reason for being with defendants was elicited by defendants to adversely affect her credibility by showing that she could not give a viable reason for getting into a car with defendants who were strangers. To prevent defendants from gaining an unfair advantage and to ameliorate the prejudice introduced by them, the trial judge correctly applied the opening the door doctrine, permitting the evidence that she was with them intending to locate weed. Moreover, the evidence was relevant to counter the information elicited by the defense.

The State correctly points out that the evidence did not amount to other-crime evidence because there was no indication that defendants and Winbush found or purchased any illegal drugs. However, even if it could be said that the evidence respecting Winbush's intent amounted to evidence precluded by N.J.R.E. 404(b) because it showed a criminal disposition on the part of defendants, "such evidence may be admitted to prove other facts in issue, subject to the court's discretion to exclude the evidence if its probative value is outweighed by its risk of prejudicing or misleading the jury." State v. Brown, 138 N.J. 481, 531 (1994), overruled on other grounds by State v. Cooper, 151 N.J. 326 (1997). Based on our review of the challenged testimony, we conclude that the trial judge did not abuse his discretion in admitting that testimony into evidence.

Ordinarily, trial error that is induced, encouraged, acquiesced in, or consented to by defense counsel does not form a basis for reversal on appeal. State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974); see also State v. Pontery, 19 N.J. 457 (1955). A "defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." Pontery, supra, 19 N.J. at 471. Tyson rejected the judge's offer to give a limiting instruction for strategic reasons. We assume that those same strategic reasons entered into his decision not to object to the evidence concerning Winbush's intentions. That being said, it bears repeating that evidence of defendants' guilt was overwhelming. The evidence introduced by defendants concerning Winbush's intentions to locate drugs for defendants did not, in our view, prejudice the jury in reaching its verdict, nor was the lack of a limiting instruction "clearly capable of producing an unjust result . . . ." R. 2:10-2. We are satisfied that it would offend the interests of justice to require a rerun of the trial under these circumstances. See Macon, supra, 57 N.J. at 333.

We have considered Tyson's remaining contentions and supporting arguments raised in Point III (that the judge erred in failing to instruct the jury that Winbush's plea established that she had no respect for the law) and Point VII (that the judge erred in denying his motion for mistrial based upon the State's failure to disclose exculpatory evidence that the items taken were not found on either defendant) and are satisfied that they lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Likewise, Tyson's Point IX argument, incorporating the points raised by Patterson, has been addressed by us and, therefore, does not require further elaboration.

We address next Tyson's assertion that the sentence was excessive. Defendant argues that the terms imposed violate Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In State v. Natale (Natale II), 184 N.J. 458, 466 (2005), our Supreme Court held "that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Thus, when a defendant receives a sentence higher than the presumptive term based on a judicial finding other than a prior criminal conviction, his sentence does not comply with the Sixth Amendment. Ibid. To remedy the constitutional defect in our sentencing code that permitted sentencing judges to impose a term above the presumptive based on the finding of aggravating factors other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6a. Id. at 487.

For those defendants whose cases were on direct appeal as of the date of the decision or who had raised this challenge to their sentences at trial or on direct appeal and who had been sentenced to a term above the presumptive in violation of the Sixth Amendment, the Court ordered a new sentencing hearing. Id. at 494. At that hearing, which will be based on the record at the prior sentencing proceeding, the defendant is entitled to have "the trial court . . . determine whether the absence of the presumptive term in the weighing process requires the imposition of a lesser sentence." Id. at 495-96.

The judge found the following aggravating factors: N.J.S.A. 2C:44-1a(3) (risk that the defendant will commit another offense), N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record), and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). He did not find any mitigating factors. In citing aggravating factor (3), the judge stated, "You've had the benefit of probation. You've been imprisoned. You still re-offend." Respecting aggravating factor (6), the judge cited Tyson's extensive prior record and "the seriousness of the convicted offenses based on your record . . . ." Finding Tyson "without any kind of remorse whatsoever" and accepted "no responsibility for [his] actions," the judge applied aggravating factor (9).

Because the judge did not base factor (9) exclusively on Tyson's prior criminal conviction, we are constrained, in light of Natale II, to remand for consideration whether the judge would impose a lesser sentence in the absence of the presumptive term. See State v. Abdullah, 184 N.J. 497, 506 (2005) (decided the same day as Natale II).

Finally, to the extent we have not expressly addressed any other arguments advanced by defendants, we deem them not to require discussion. R. 2:11-3(e)(2). Accordingly, Tyson is remanded for resentencing in accordance with this opinion. In all other respects, the judgments of defendants' convictions are affirmed.

 

These appeals are consolidated for purposes of this opinion only.

No Early Release Act, N.J.S.A. 2C:43-7.2.

On the robbery conviction, Tyson also received a discretionary ten-year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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44

A-0275-04T4

December 12, 2005