STATE OF NEW JERSEY v. CHRISTOPHER STOKES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6021-04T46021-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER STOKES,

Defendant-Appellant.

_____________________________________________________________

 

Submitted October 4, 2006 - Decided November 20, 2006

Before Judges Holston, Jr. and Grall.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-11-2635-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Kristen Brewer, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Christopher Stokes, was found guilty on November 18, 2004, after a jury trial, of six counts of Hudson County Indictment No. 02-11-2635-I, as follows: count one, first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; count two, first-degree carjacking, contrary to N.J.S.A. 2C:15-2; count three, third-degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3; count four, third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b; count five, second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-3a and count eight, third-degree possession of CDS, contrary to N.J.S.A. 2C:35-10a(1). On June 3, 2005, defendant was sentenced. The court merged counts one, three, and five into count two. The court granted the State's motion to sentence defendant to a mandatory extended term pursuant to N.J.S.A. 2C:43-6c and sentenced defendant to thirty years imprisonment with an 85% parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2d(10). Defendant appeals his conviction and sentence. We affirm.

Fred Plaza and Charlie Arrazo, were employed by Astro Enterprises as speaker salesmen. They worked together, traveling around in a van, selling sets of speakers to the general public. On May 29, 2002, Plaza was driving the van, Arrazo was sitting in the front passenger seat, and the back of the van contained eight sets of speakers. They drove the van into Jersey City, and while stopped at a red light on Route 440, they offered to sell a pair of speakers to two black men in a silver Daewoo. The van and Daewoo pulled into the parking lot of a shopping center in order for the occupants to continue negotiations.

The victims described the driver of the Daewoo, later identified as Henry Steed, as skinny, and the passenger, later identified as co-defendant William Gilliam, as heavier. In the shopping center parking lot, Plaza negotiated with Gilliam for about a half an hour, resulting in an agreed-upon sale price of $750 for a set of speakers. As Gilliam claimed he had only $500 on him, Plaza and Arrazo agreed to follow the two men to Gilliam's sister's house for him to retrieve the additional money.

Plaza drove the van closely behind the Daewoo through Jersey City. As a precaution, Plaza memorized the license plate number on the Daewoo. The Daewoo came to a stop on Broadman Parkway, a two-way residential street. Plaza parked the van behind the Daewoo. Gilliam, who had been sitting in the passenger seat, got out of the Daewoo and began talking on a cell phone. Plaza then witnessed a black man with dreadlocks approach Gilliam and appear to ask for directions. After the man walked away, Gilliam approached the passenger side of the van.

At this point, a blue Mitsubishi Eclipse pulled up and double-parked along-side the van. Plaza then felt a gun pointed at the back of his head. The man holding the gun to Plaza's head was the man with the dreadlocks, later identified as defendant, who had approached Gilliam outside the Daewoo moments before. He told Plaza that he was a "cop" and not to move or he would blow his head off. Gilliam then put his hands on Arrazo's neck and ordered him out of the van. When all four men were on the curb next to the van, Gilliam took a cell phone and approximately $100 in cash from Arrazo.

As this was taking place, Patrolman (Ptl.) King and Ptl. Tedesco of the Jersey City Police Department were traveling in a marked police cruiser on Broadman Parkway. They observed the Eclipse double-parked and stopped to issue a ticket. Defendant saw the police approach. Gilliam told Arrazo to be "cool" and to act like they were "hanging out." Then defendant threw the gun he had been holding into the van and got into the Eclipse. Gilliam got into the van and drove off. The Eclipse followed. Ptl. King then activated his overhead lights and pulled the Eclipse over as it turned the corner onto Westview Court.

As the officers approached the vehicle, Plaza and Arrazo ran up to the officers, shouting that one of the men had a gun and had robbed them. Ptl. King drew his service weapon and ordered the driver out of the car. Plaza and Arrazo identified defendant as the armed individual and defendant was arrested at the scene. Cash in the amount of $175 was found in defendant's front pants' pocket. When the police checked the vehicle for a weapon, five vials of cocaine and $640 in cash were recovered from the center console. The Eclipse was registered to defendant.

At the police station, both Plaza and Arrazo again identified defendant in the holding cell. Plaza provided the officers with the license plate number of the Daewoo. The Daewoo was registered to Beatrice McClory and was located by the police in close proximity to McClory's home. The victims were then taken to the Daewoo, where they identified the vehicle as the one they had followed onto Broadman Parkway.

McClory's husband, Steed, was originally considered a suspect, but no charges against him were ever filed. He signed a written statement, which was consistent with that of the victims. He told the police that he had been using his wife's car for "car service" and transported a man he knew as "Speed" to Broadman Parkway. He disavowed any knowledge that the carjacking was planned, and stated he left the scene as soon as he saw the driver of the Eclipse pull a gun on Plaza. The State submitted at trial that Steed was the thin man who drove the Daewoo to Broadman Parkway.

Steed identified a photograph of co-defendant, Gilliam, as "Speed," the heavier man in the Daewoo. Steed also identified defendant from a photograph as the gunman. At trial, Steed maintained he never read the statement and merely signed it because he was told it reflected what the victims told the police, and he was assured that if he signed the statement and identified the photographs, he could go home without being charged. The van was eventually recovered, however the sets of speakers and the gun were not. No fingerprints lifted from the Daewoo matched Gilliam's fingerprints.

Defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SEVER THE DRUG CHARGES FROM THE OTHER SUBSTANTIVE CHARGES.

POINT II

THE TRIAL COURT ERRED BY PERMITTING THE STATE TO ELICIT TESTIMONY REGARDING ALLEGED THREATS MADE TO A KEY STATE'S WITNESS AND FURTHER ERRED BY FAILING TO ISSUE ANY LIMITING INSTRUCTIONS TO THE JURY REGARDING SUCH TESTIMONY (PARTIALLY RAISED BELOW).

POINT III

THE TRIAL COURT'S CHARGE TO THE JURY REGARDING ACCOMPLICE LIABILITY WAS INADEQUATE AND INSUFFICIENT IN NATURE (NOT RAISED BELOW).

POINT IV

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE (NOT RAISED BELOW).

POINT V

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

I.

Prior to jury selection, but after the jury panel had been brought into the courtroom and the indictment read to the jury panel, defendant requested that the two drug-related charges be severed, since they were not related to the first seven counts of the indictment. Defendant contends that his motion to sever was improperly denied, and the denial constitutes an abuse of the trial court's discretion.

Defendant argues that the evidence from the drug charge would not have been admitted as other crimes evidence pursuant to N.J.R.E. 404(b) if the carjacking charge alone had been tried. The State submits that the denial of the severance motion, filed after the commencement of jury selection, was a sound exercise of the trial court's discretion and that defendant was not prejudiced, as the defense utilized the presence of drugs in defendant's car as a defense to the more serious charges.

"A motion for separate trial of counts of an indictment must be made pursuant to Rule 3:10-2, unless the court for good cause shown, enlarges the time." R. 3:15-2(c). Rule 3:10-2(a) requires that at the arraignment/status conference, counsel shall advise the court of counsel's intention to file a severance motion, and at the conference the court shall set "dates for filing, briefing and for the hearing" of such motion. The court may permit a motion to be made thereafter for "good cause and in the interest of justice." Id.; R. 3:15-2(c). Failure to make such a motion constitutes waiver from which the court may grant relief. State v. Del Fino, 100 N.J. 154, 160 (1985).

In this case, the judge stated:

Alright, obviously this issue comes very late in the game. The jury - potential jury having already been advised that there are narcotics charges pending against the defendant. It would, I think serve little purpose to sever them even if severance was appropriate based upon the reasoning in support of the application.

The judge noted that the drug charges arose out of contemporaneous events as the narcotics were alleged to be in the possession of defendant at the time of his arrest for the carjacking. Additionally, defendant's motion to sever was made after the jury panel had been read the charges and as jury selection had begun. Also, defendant and his counsel had signed a plea cut-off form indicating that there were no remaining motions to be argued prior to trial. Had the motion been granted, the jury pool would have had to have been instructed to disregard the drug possession charges. Lastly, defense counsel failed to make the requisite good cause showing required by Rule 3:10-2(a).

Although there is preference for joinder, Rule 3:15-2(b) vests a trial court judge with discretion to grant or deny a motion to sever counts of an indictment. State v. Oliver, 133 N.J. 141, 150 (1993). Thus, the decision of the trial court can be reversed only if the appellate court finds an abuse of discretion. State v. Chenique-Puey, 145 N.J. 334, 341 (1996); State v. Mance, 300 N.J. Super. 37, 53 (App. Div. 1999). Additionally, the court's decision to deny defendant's motion is entitled to great deference on appeal. Id.

Our review of the record convinces us that defendant was not prejudiced by the denial of his motion to sever. Counsel for both defendants used the possession of drugs in the Eclipse to their advantage, attempting to discredit Plaza and Arrazo as drug buyers rather than legitimate speaker salesmen.

Further, we are satisfied that severance would not have resulted in acquittal. Defendant conceded defendant's possession of cocaine and used it in his defense against the more serious charges. The evidence of carjacking was equally sound. Defendant was arrested at the scene by officers who were in the process of issuing him a ticket for double-parking. The victims signaled to the officers that they had been carjacked at gunpoint, and identified defendant at the scene. The testimony of the victims was unequivocal as to the defendant's identity and his role in the armed carjacking. Therefore, although we are satisfied that the court's denial of the late motion did not constitute an abuse of discretion, if there were any error, it was harmless. See State v. Macon, 57 N.J. 325, 337-38 (1971).

II.

Defendant next contends that the trial court erred in admitting the testimony of Detective Casio and Assistant Prosecutor Lane that Steed received telephone calls that were threatening in nature and compounded the error by not giving a N.J.R.E. 404(b) limiting instruction.

Steed gave two statements. The first was Steed's signed statement to police in the early morning hours of May 30, 2002, less than twelve hours after the carjacking. This statement was admitted as substantive evidence pursuant to N.J.R.E. 803(a)(1). The second statement, given November 10, 2004, involved threats against Steed. After conducting a N.J.R.E. 401 hearing, the court admitted the second statement. The statement was not admitted to prove that threats had, in fact, been made but as a prior inconsistent statement to show that Steed feared for his and his family's safety should he testify, as a result of having received several anonymous telephone calls.

The court admitted the statement for the purpose of permitting the jury to evaluate the credibility of Steed and the veracity of his statement. There was nothing in the statement to suggest that either defendant or Gilliam made the telephone calls, nor was there any other evidence of the identity of the callers. Further, neither defendant was charged with witness tampering.

Defendant contends that while such testimony might have possessed some probative value, any probative value was clearly outweighed by its inherently prejudicial and inflammatory nature. Defendant asserts that while the allegedly threatening telephone calls were never attributed to either defendant, the inescapable conclusion was that the calls had either actually been made by one of the defendants, or that one or both defendants had in some way been responsible for the calls being made. Defendant, therefore, contends that the statement must be evaluated pursuant to N.J.R.E. 403 and must be excluded because "its probative value is substantially outweighed by the risk of undue prejudice.

The burden to prove that N.J.R.E. 403 considerations should control is on the party seeking exclusion. Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 403 (2006). The trial court has broad discretion in performing a Rule 403 balancing test. Ibid. "Determinations by the trial court pursuant to Rule 403 will not be overturned on appeal unless it can be shown that there was a palpable abuse of discretion, a 'finding so wide off the mark that a manifest denial of justice resulted.'" Ibid. (quoting Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). We find no abuse of discretion here.

Defendant contends, however that a proper limiting instruction in the court's charge to the jury was necessary in order to avoid the possibility of undue prejudice to defendant. However, no charge was requested by counsel.

The court instructed the jury as to the appropriate criteria to be utilized in assessing Steed's inconsistent statements to the police as follows:

Now as far as Mr. Steed is concerned, his testimony as I recall it and once again I caution you, it's your recollection and not mine that determines the facts. As I recall it, he indicated on the stand that the statement he signed did not contain his words but were merely the police rendition of the victim's statement to them and that he signed them only to indicate he was not involved in the robbery. He also denied stating to Assistant Prosecutor Lane that as a result of several phone calls that he received he was fearful that his testimony at trial would endanger the safety of himself and his family.

. . . .

Now specifically as to Mr. Steed's inconsistent statements and the witness statement that's been admitted in evidence, in deciding whether that statement, if made is credible, you should consider any of the following relevant. First Henry Steed's connection to and interest in the matter reported in the prior statement.

Second, the person or persons to whom he gave the statement.

Third, the place and occasion of the giving of the statement.

Fourth, that Henry Steed was then in custody or otherwise a target of the investigation.

Fifth, the physical and mental condition of Henry Steed at the time.

Sixth, the presence or absence of other persons.

Seventh, whether Henry Steed incriminated himself or sought to exculpate himself by the statement.

Eighth, whether a writing is in a person's handwriting.

Ninth, the presence or absence and the nature of any interrogation.

Tenth, whether a writing contains all or only a portion or somewhat of what Henry Steed said.

Eleventh, the presence or absence of any motive to fabricate.

Twelfth, the presence or absence of any explicit or implicit pressure, inducement or coercion to make a mistake.

Thirteenth, whether the use to which the authorities would put the statement was apparent or make known to Mr. Steed.

Fourteenth, the inherent believability or lack of believability of the statement.

Fifteenth, the presence or absence of corroborative evidence.

Now I further instruct you that a witness' prior inconsistent statement under police interrogation must be carefully examined and assessed in light of all the surrounding circumstances including his interest in giving the statement at that time.

. . . .

Defendant does not allege that the overall instruction concerning Steed's statement was incorrect, only that Steed's second inconsistent statement as to the threats allegedly made should have been treated in a more particularized way.

We are satisfied that the court's general instruction respecting Steed's inconsistent statements was correct. Although the court did not directly address the fact that Steed never identified the caller as one of the co-defendants and that the jury should not assume the caller was one of them, we are convinced that the failure to so charge did not subject defendant to unfair prejudice and was not clearly capable of producing an unjust result. This is particularly true given the overwhelming evidence against defendant based on the victims' eyewitness identification of defendant at the scene. See Macon, supra, 57 N.J. at 337-38; R. 2:10-2.

III.

Defendant next argues that the trial court's charge with respect to accomplice liability was inadequate. Specifically, defendant asserts that since count one involved a charge of first-degree robbery and the lesser-included offense of second-degree robbery the trial court erred in not instructing the jury in accordance with Model Jury Charge No. Two, which refers to a situation where a defendant is charged as an accomplice and the jury is instructed as to the lesser-included charges. Defendant argues that the jury should have been expressly informed that the parties who participated in the charged criminal offenses could be found guilty of different degrees of the offenses, depending on their own actions, their requisite states of mind, and that an accomplice could be guilty of a lesser-included offense compared to the offense to which the principal was found guilty. Defendant thus contends that the jury was not adequately instructed as to how it should apply accomplice liability principles to each defendant as it related to each offense.

The objection was not raised below. However, because the error complained of involves the elements of the crimes charged, we must reverse unless the instruction as a whole adequately conveyed the essential elements for defendant's conviction. See State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993).

"This court has repeatedly held that portions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973).

The trial court explained accomplice liability as follows:

Now there's one thing I need to explain to you at this point and that is the law at times will make one person responsible or liable for the conduct of another person. So it's not only your own conduct that sometimes the law will hold you accountable for, but there are instances when the law will make you responsible for the conduct of another person.

The law here in New Jersey is a person is guilty of an offense if it is committed by his own conduct or the conduct of another person for which he is legally accountable or both, okay?

A person is legally accountable for the conduct of another person when he's an accomplice of such other person in the commission of the offense. A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he solicits the other person to commit the offense or aids or agrees or attempts to aid such other person in planning or committing the offense, okay? Everybody understand what we mean by that?

This provision of law means that not only is the person who actually commits the criminal act responsible for it, but one who is legally accountable as an accomplice is also responsible as if he committed the crime himself. Okay? Everybody understand that?

The trial court then gave illustrative examples of accomplice liability that demonstrated a shared purpose to commit the crime was required for conviction.

In Bielkiewicz, we determined that "a jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he 'shared in the intent which is the crime's basic element and at least indirectly participated in the commission of the criminal act.'" Bielkiewicz, supra, 267 N.J. Super. at 528 (quoting State v. Fair, 45 N.J. 75, 95 (1965)). In this case, the jury was instructed on robbery and then on carjacking. The judge gave one instruction on complicity. The instruction said guilt was established if the defendant "agreed to assist [codefendant] in the commission of an offense with a full knowledge and a shared purpose." The judge also instructed that liability required proof that to be an accomplice defendant had "to have the same purpose, a shared purpose and you must agree to either commit or assist or help [codefendant] in committing the crime."

While portions of this instruction read in isolation suggest that knowledge of the crime that the codefendant would commit is enough, we are convinced that the instruction read as a whole could not have misled the jury. The elements of each crime were stated and the judge told the jurors that the State was required to prove a shared purpose to commit the crime. We are satisfied that the court's accomplice liability charge adequately communicated that each defendant was guilty only of the crimes in which they had a shared purpose or intent. Additionally, we are satisfied that the examples the judge gave in connection with his accomplice liability instruction made the necessary elements clear, despite the fact that he never used the model jury instruction language, "the State must prove it was defendant's conscious object that the specific conduct charged be committed." Model Jury Charge (Criminal), 2C:2-6.

We are satisfied that the charge as a whole properly instructed the jury on the concept of accomplice liability and, therefore, there was no error in the court's charge.

IV.

Defendant also argues that the State's summation included improper remarks, which implicated his Fifth Amendment right not to testify. The State asserts that the remarks were drawn on permissible inferences from the facts adduced at trial. We are satisfied from our thorough review of the prosecutor's summation that defendant's argument is without merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(2).

V.

Defendant was convicted of armed robbery in the first-degree, contrary to N.J.S.A. 2C:15-1, carjacking in the first-degree, contrary to N.J.S.A. 2C:15-2, theft by unlawful taking in the third-degree, contrary to N.J.S.A. 2C:20-3, unlawful possession of a weapon in the third-degree, contrary to N.J.S.A. 2C:39-5(b), possession of a weapon for an unlawful purpose in the second-degree, contrary to N.J.S.A. 2C:39-3(a), and possession of CDS in the third-degree, contrary to N.J.S.A. 2C:35-10a(1).

On December 2, 2004, the State filed and served on defendant a motion for a mandatory extended term under the Graves Act. N.J.S.A. 2C:43-6c. In support of its motion, a judgment of conviction was filed indicating that on December 4, 1998, when defendant was age twenty-two, that he was convicted of a crime of possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. The court granted the State's motion finding defendant's conviction for armed robbery represented defendant's second Graves Act offense.

The court, before imposing sentence over the State's objection, merged for purposes of sentencing the armed robbery, theft by unlawful taking, and possession of a weapon for an unlawful purpose into first-degree carjacking. The State opposed merger, contending merger precluded the imposition of a mandatory extended term because carjacking is not an offense enumerated in N.J.S.A. 2C:43-6c.

The court, relying on State v. Dillihay, 127 N.J. 42 (1992), concluded that despite merger, defendant remained extended term eligible. The court sentenced defendant to an extended term of imprisonment of thirty years with an 85% parole disqualifier under NERA. N.J.S.A. 2C:43-7c.

Defendant appeals his sentence on carjacking, arguing that the sentence imposed was manifestly excessive. Defendant, while conceding that the range of sentence for an extended term of armed robbery, which the court concluded survived its merger into carjacking, was from twenty years to life imprisonment, with a pre-Natale presumptive term of fifty years, contends that the court should have imposed the minimum extended term permitted of twenty years with an 85% NERA parole disqualifier. The court interpreted N.J.S.A. 2C:43-7(2) to require a sentence of twenty years to life for defendant's extended term. The court sentenced defendant to ten years above this minimum. The court weighed several aggravating and mitigating factors in its sentencing decision. In accordance with the statute, the judge found that the State had established two aggravating factors: N.J.S.A. 2C:44-1a(3), the risk that defendant will commit another offense and N.J.S.A. 2C:44-1a(9), the need for deterring defendant and others from violating the law. The judge found no statutory mitigating factors. The judge determined that the aggravating factors substantially outweighed the non-existing mitigating factors, and justified an upward departure from the then-presumptive term of fifty years. However, the court specifically declined to impose such a sentence and chose to sentence defendant to ten years above the minimum.

Defendant challenges the court's finding of aggravating factor N.J.S.A. 2C:44-1a(3), that the defendant is likely to re-offend. We are satisfied that the court properly considered the full range of defendant's criminal history, including both prior arrests and convictions in making its finding. See State v. Marzolf, 79 N.J. 167, 176-77 (1979).

In regard to deterrence under N.J.S.A. 2C:44-1a(9), the court specifically stated, "given the defendant's predilection for firearms and violence, there is an enhanced need for deterrence in this case." Defendant had two prior firearm convictions. Thus, the court made particular findings, based upon competent, credible evidence, that defendant needed to be deterred from committing such crimes in the future. State v. Roth, 95 N.J. 334, 365 (1984).

Mitigating factors must be considered, but "they may be accorded such weight as the judge determines is appropriate." State v. Dalziel, 182 N.J. 494, 504-05 (2005). We are satisfied that mitigating factor N.J.S.A. 2C:44-1b(11), that the imprisonment of the defendant will impose an excessive hardship to the defendant or his dependents, does not apply as defendant's son is in the custody of his maternal grandparents by court order and there is no indication of ongoing contact or a relationship with his son. Likewise, a five-year lapse between serious indictable convictions does not make mitigating factor N.J.S.A. 2C:44-1b(7) applicable to defendant. Neither factor was raised by defense counsel below.

Defendant asserts that the court did not properly consider the impact that the NERA 85% parole disqualifier would have on his "real time" sentence. N.J.S.A. 2C:43-7.2(d)(10). This assertion is contrary to the record. The court stated:

In considering the appropriateness of either an ordinary or extended term of imprisonment, the court must be mindful of the full impact of any sentence in terms of the actual time the defendant must serve in custody pursuant to that sentence.

The court then explained the impact that NERA would have on a life sentence, that defendant would serve sixty-three and one-half years, and would likely die in custody. In sentencing defendant to a term of thirty years, the court's sentence specifically considered the impact of NERA. See State v. Marinez, 370 N.J. Super. 49, 57-59 (App. Div.), certif. denied, 182 N.J. 192 (2004).

In sentencing defendant to an enhanced Graves Act extended term after merging defendant's armed robbery conviction into his carjacking conviction, the court stated:

In enacting the carjacking statute, the Legislature did not create a new offense, it enhanced the penalty for a specific kind of robbery. To punish the defendant separately here under the facts of this case would violate the defendant's constitutional rights to be protected from being placed twice in jeopardy for the same offense. The armed robbery rule, therefore, merged with the carjacking.

The resolution of the merger issue does not, as the state fears, preclude the imposition of the mandatory extended term on the defendant as a second Graves Act offender. The situation in this case is analogous to that faced by the Supreme Court in State v. Dillihay. The specific legislative purpose to impose enhanced sentences for Graves Act offenses can be accommodated consistent with double jeopardy principles here by allowing the enhanced penalty for the second Graves Act offense to survive the merger. The motion for the extended term is, therefore, granted.

In Dillihay, the Court held that "the school zone statute [N.J.S.A. 2C:35-7] must be construed to allow merger of school-zone offenses into first- and second-degree Section 5 offenses [N.J.S.A. 2C:35-5,] provided that a defendant convicted of a drug offense in a school zone is sentenced to no less than the mandatory minimum sentence provided in the school-zone statute." Dillihay, supra, 127 N.J. at 55. The Court stated:

We acknowledge an apparent inconsistency in preserving the mandatory minimum sentence authorized by Section 7 in the context of our holding that the Section 7 conviction must merge into the Section 5 conviction. That result, however, reflects the Legislature's clear intent to impose an enhanced punishment for those who violate Section 5 while in a school zone. Thus, Section 5 should be construed and understood to require imposition of Section 7's mandatory minimum term as part of the sentence imposed on any defendant convicted of a second-degree Section 5 offense and a related Section 7 offense; in respect of first-degree Section 5 convictions, the statute expressly provides for a mandatory minimum sentence.

[Ibid.]

The Court specifically noted, "that the Legislature has previously enacted other sentencing schemes that reflect its purpose to impose enhanced sentences in order to deter criminal activity that poses a special risk to society. See N.J.S.A. 2C:43-6c (Graves Act requires imposition of mandatory minimum sentence for convictions of certain crimes committed with firearm)." Id. at 56.

We are convinced that the judge correctly applied Dillihay when he concluded that the mandatory extended term for robbery survived merger. See also State v. Wade, 169 N.J. 302 (2001); State v. Baumann, 340 N.J. Super. 553 (App. Div. 2001); Cannel, New Jersey Criminal Code Annotated, comment 9 on N.J.S.A. 2C:1-8 (2005) ("occasionally one aspect of a sentence for one of the offenses being merged will be more severe than that for the other offense and a second aspect will be less severe. In such a case, the more severe aspects of each sentence should survive merger").

We are satisfied that the trial court's assessment of defendant's crime was thorough and fact-sensitive and that defendant's sentence was in accordance with the statutes and case law. Defendant's sentence does not shock the judicial conscience. Roth, supra, 95 N.J. at 364-65. Accordingly, defendant's conviction and sentence are affirmed.

Affirmed.

 

State v. Natale, 184 N.J. 458 (2005),

(continued)

(continued)

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November 20, 2006