STATE OF NEW JERSEY v. CORREY BURDEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0619-05T40619-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CORREY BURDEN,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 17, 2007 - Decided October 31, 2007

Before Judges Lisa and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-05-0513.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Robert H. Corrado, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The jury found defendant guilty of second-degree robbery, N.J.S.A. 2C:15-1, as a lesser-included offense of first-degree armed robbery (count one); and third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count three). Under count one, the jury answered affirmatively a special interrogatory inquiring whether defendant used or threatened the immediate use of a deadly weapon, thus establishing a predicate for imposition of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, in its form prior to amendment on June 29, 2001. The judge sentenced defendant on count one to six years imprisonment, subject to an 85% parole disqualifier and three years parole supervision under NERA. On count three, the judge imposed a concurrent term of five years imprisonment subject to a three-year parole disqualifier. The judge ordered restitution of $177 and imposed appropriate mandatory monetary assessments.

On appeal, defendant argues:

POINT I

The jury instruction on duress did not properly explain the burden of proof, and the instructions, when viewed as a whole, were, at best, contradictory on the state's duty to prove the absence of duress before a conviction could be returned on any count. (Not Raised Below).

POINT II

The judge never told the jury what burden of proof applies to the nera-related question on the verdict form for robbery. (Not Raised Below).

POINT III

The convictions should merge; additionally the defendant's sentence for count three is excessive and illegal, and $100.00 of the restitution award is improper.

The State concedes so much of defendant's argument in Point III as applies to merger, and we agree. Therefore, we direct entry of an amended judgment of conviction reflecting the merger of count three with count one. We agree with defendant's argument in Point II, and accordingly direct entry of an amended judgment of conviction deleting the NERA parole disqualifier and parole supervision requirement that were imposed as part of the sentence. We reject defendant's remaining arguments and in all other respects affirm his conviction and sentence.

I

On the night of February 18, 2001, Allen Perkins walked out of a liquor store in Paterson. A car occupied by three individuals pulled up. Two of them, defendant and Richard Francesci, got out. The driver, Carlos Cuba, remained in the car. According to Perkins, Francesci pointed at him what appeared to be a real handgun, but later turned out to be an imitation gun, and warned, "Poppy, don't move or I'll shoot you." At the same time, Perkins claimed that defendant put a knife to Perkins' throat, went through his pockets, and removed $47. Perkins claimed defendant cut his chin with the knife. Defendant and Francesci returned to the car, and the three men drove off.

Perkins immediately reported the incident to the police, and the three men were soon apprehended. Perkins identified defendant and Francesci as his assailants. The police recovered from the car two knives and the imitation firearm.

After receiving his Miranda rights, defendant gave a statement to the police, which included the following passage that was read to the jury:

Carlos, and Rich, and myself were going to the liquor store. Carlos parked the car on Highland Street, and Rich and I went to the liquor store. . . . [W]e were walking to the liquor store and Rich saw a guy. He pulled out a gun. Then Rich gave me a knife. I held the knife to the guy's face, and he told me to check the guy. I told him I didn't want to be part of this. He grabbed the guy and told me to check him. I checked the guy, and then I ran back to the car. He left the scene, and we were going to take Rich to Park and East 18th. That is when the police stopped us.

The detective who took the statement conceded in his trial testimony that he did not write down in the statement, which was later signed by defendant, everything that defendant said but only wrote down portions when defendant "decided to tell me the truth of what occurred in the incident." Descriptions of the events which the detective deemed untruthful were not incorporated into the statement.

Defendant testified at trial. He said he came into Cuba's company between 9:30 and 9:45 p.m. on February 18, 2001. During their time together, Cuba spoke to Francesci. Defendant said he did not associate with Francesci because "[h]e's bad news. He has a bad reputation of doing stupid things." Francesci asked Cuba for a ride home, but Cuba refused, and Francesci walked away. Cuba and defendant entered Cuba's car and began to drive away. Francesci caught up to the vehicle at an intersection and again asked Cuba for a ride home. Cuba agreed and Francesci entered the car. After driving about two blocks, Francesci asked Cuba to make a quick stop because Francesci had to collect a debt from "some guy." At Francesci's direction, they parked in front of a liquor store.

As Francesci got out of the vehicle, defendant told Cuba he was going to stop in the liquor store to make a purchase. As defendant walked toward the liquor store, he observed Francesci telling Perkins to give him money and pointing at Perkins what appeared to defendant to be a real gun.

At that point, defendant said Francesci waived the gun at defendant and directed him to check Perkins' pockets. Defendant froze in shock, fearing that Francesci would shoot him if he did not comply. Francesci handed defendant a small object and told him to search Perkins. Defendant could not see that the object was a small knife until Francesci handed it to him. Defendant gave Perkins a brief pat down, but did not put his hands inside Perkins' pockets. He did not want to rob Perkins and thought a pat down would satisfy Francesci, who was "frantic" and "really ballistic" at the time.

Defendant told Francesci that Perkins did not have anything in his pockets. Francesci thought defendant was lying, but defendant said he wanted no part of the robbery and was leaving. Defendant went back to the car and informed Cuba of Francesci's actions. Before Cuba could leave the scene, Francesci reentered the car. They drove away and were stopped by the police a short time later.

Defendant contended he could not remember what the knife given him by Francesci looked like, but insisted it was not like the two knives found in the car. He also said he did not remember putting the knife to Perkins' face as he patted him down. Defendant claimed that the detective taking the statement invented the reference to defendant putting the knife to Perkins' face because he wanted defendant's statement to match the victim's account. Defendant also said the detective fabricated the statement about defendant taking $5 from Perkins. According to defendant, this deception coincided with the detective's aggressive attempts to make defendant "say things I really didn't want to say or do things that I really didn't want to do."

II

Based upon defendant's account during trial of the events, the judge agreed to instruct the jury on the defense of duress. See N.J.S.A. 2C:2-9. The charge was given, and no objection was made at trial with respect to the charge itself or its placement in the overall instructions to the jury. Now, for the first time on appeal, defendant argues that the charge was defective in two respects. First, he argues that the charge "badly scrambled the burden of proof," and did not effectively instruct the jury that the State had the burden of disproving beyond a reasonable doubt that defendant acted under duress. Second, defendant argues that the judge erred in giving the duress charge only once, after completion of the instructions on all of the substantive charges, rather than repeating the duress charge in conjunction with each of the substantive charges. We reject both arguments.

The judge followed the model charge on duress. See Model Jury Charge (Criminal), "Duress" (1982). Consistent with the model charge, the judge instructed the jury that the State had the burden to prove beyond a reasonable doubt each element of each substantive offense. Then, also consistent with the model charge, the judge continued:

The state also has the burden to disprove beyond a reasonable doubt the defense of duress. If you find the state has proven beyond a reasonable doubt each element of the offense charged and that the state has disproved beyond a reasonable doubt the defense of duress, you must find the defendant guilty.

If, however, you determine that the state has failed to prove beyond a reasonable doubt one or more of the elements of robbery or possession of an imitation firearm for unlawful purpose or possession of a weapon for an unlawful purpose, or aggravated assault, or has failed to disprove the defense of duress, you must find the defendant not guilty.

This passage clearly and unequivocally informed the jury of the State's burden of proof regarding the duress defense. Defendant contends, however, that another portion of the duress charge confused the issue of burden of proof, namely:

Before conduct which would otherwise be criminal can be excused on the ground that such conduct was the direct result of force or threats of force upon the defendant or another, the evidence must indicate that the following conditions existed at the time.

One, there was use or threatened use of unlawful force against the person of the defendant or another; and, two, the force or threatened force would be of such a type that a person of reasonable firmness in a similar situation would have been unable to resist.

[Emphasis added.]

We first note that because defendant did not object at trial, our review is guided by the plain error standard, and we will reverse only if any error was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). In connection with a jury charge, plain error is:

legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.

[State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).]

We find no error, let alone plain error, in the charge. The instruction that "the evidence must indicate that the following conditions existed" to satisfy the duress defense was neutral in its terminology and did not express or imply that the defendant had any burden of proving the existence of the statutorily required conditions. On the other hand, the instruction clearly and forcefully informed the jury that it was the State that bore the burden of proof on this subject and that its burden was to disprove beyond a reasonable doubt the existence of the statutory requirements of duress.

We find unpersuasive defendant's reliance on State v. Moore, 122 N.J. 420 (1991), and State v. Oglesby, 122 N.J. 522 (1991). In Moore, the judge instructed the jury that the defendant was required to "prove by a preponderance of the evidence, that . . . [a mental disease] was of such a nature that it prevented him from acting purposely, knowingly or recklessly" and that the State "does not have the burden of persuasion on this issue." Moore, supra, 122 N.J. at 432. The charge then continued, "even if a defendant has failed to prove that he was not able to have a particular state of mind by reason of a mental disease or defect, that does not relieve the State of its job to prove that, in fact, at the time in question, the defendant had the requisite mental state." Id. at 433. The Court found this instruction contradictory because it "conveyed to the jury that it was defendant's burden to prove that his mental condition negated the presumed culpability that attended his doing of the act." Id. at 434. Likewise, in Oglesby, the trial judge incorrectly instructed the jury that the defendant bore the burden to "establish[] the affirmative defense of mental disease or defect by a preponderance of the credible evidence," followed by a statement that the defendant should be found guilty if the State proved beyond a reasonable doubt all of the elements of the crimes and also "that the State has disproved beyond a reasonable doubt this defense of mental disease or defect." Oglesby, supra, 122 N.J. at 529. The Court found these conflicting statements regarding the burden of proof impermissibly confusing. Id. at 530.

On the contrary, the instruction in the case before us nowhere informed the jury that defendant had the burden of proving anything about the alleged duress. The instruction merely informed the jury that the "evidence" must "indicate" that the statutory conditions of duress "existed."

Next, defendant claims error in the judge's failure to include the duress instruction in conjunction with each offense. Defendant urges an analogy with the Supreme Court's treatment of passion/provocation manslaughter in conjunction with the jury instruction on murder in State v. Coyle, 119 N.J. 194 (1990). Defendant argues that, as with murder and passion/provocation manslaughter, it should have been explained to the jury in connection with the charge on each substantive offense that defendant could not be found guilty unless, in addition to proving beyond a reasonable doubt all of the elements of the offense, the State also disproved beyond a reasonable doubt the existence of duress.

We first note that during the charge conference, the judge offered defense counsel the choice of repeating the duress charge in connection with each offense or giving the charge only once, after instructing on each offense. This colloquy occurred:

THE COURT: [Defense counsel], I'll give you the choice. Do you want me to read the duress defense? I'll read it right after the substantive offenses.

[COUNSEL]: Or?

THE COURT: Or I didn't know. I mean, I could read it -- I think I should read it after all of the substantive offenses because he said that he was under duress for all --

[COUNSEL]: I was about to say --

THE COURT: Yeah.

[COUNSEL]: -- otherwise you're going to have to repeat yourself.

THE COURT: The only thing is I may -- let me see how long this charge runs.

Immediately prior to the court's instructions, the judge and defense counsel discussed the length of the charge:

[COUNSEL]: Judge, what's your estimate on length of charge?

THE COURT: I have to be perfectly honest with you, I'm going to guess that I'll be lucky to finish this charge if I go straight through by a quarter to four, --

[COUNSEL]: Okay.

THE COURT: -- lucky. We'll see. I'm going to go slow, and I may have to take a break. We'll see. Because there's a lot. There's a lot there.

[COUNSEL]: I have no objection if you move quick.

THE COURT: No, I know that, but I want to go slow. I want to make sure they -- they understand it, because there's a decent possibility of read back. It's a -- it's a tough charge. You'll see when I start to read it. Let's bring the jury out.

Thus, it is evident that defense counsel agreed with the judge's decision to present the duress charge only once at the end, rather than repeating it in connection with each offense. Accordingly, in order for us to reverse on this point, we would not only have to find plain error but would have to reverse in the face of invited error.

"Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." Harris v. Peridot Chem. (N.J.), Inc., 313 N.J. Super. 257, 296 (App. Div. 1998) (citation and internal quotation marks omitted).

The 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.

[Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)).]

"[U]nder the invited error doctrine the particular mistake belatedly recognized on appeal must 'cut mortally into the substantive rights' of the appellant to warrant a reversal." Harris, supra, 313 N.J. Super. at 296 (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)).

That standard is not met here. Although it might have been prudent in this format of presenting the duress charge only once at the end for the judge to alert the jury when instructions were given with respect to the individual offenses that they would be receiving a duress charge which could negate a finding of guilt even if the State proved beyond a reasonable doubt all of the elements of such an offense, we do not find reversible error in the failure to do so.

The relationship between an affirmative defense such as duress and a substantive offense is not of the same character as the relationship between passion/provocation manslaughter and murder. In the case of the latter, both crimes are forms of knowing or purposeful homicide. For that reason, they must be considered together, and it is impermissible for the jury to be instructed that the mitigated form of knowing or purposeful murder, namely passion/provocation manslaughter, can only be considered if the jury first acquits of murder. In the case of the former, failure of the State to disprove beyond a reasonable doubt the defense of duress results in exoneration from criminal culpability, and only becomes relevant if the jury first finds that criminal culpability would attach by virtue of the State's success in proving beyond a reasonable doubt all of the elements of the offense.

Unlike the impermissible sequential instruction condemned in Coyle regarding murder and passion/provocation manslaughter, the jury here was not told that if it found the State had proven all of the elements of an offense it could not consider the principles of duress. On the contrary, the jury was told that "[i]n the defense of the [various substantive] charges . . . , the defendant contends he's not guilty because, at the time of the offense, he acted under duress." And, it was told that in addition to the burden to prove beyond a reasonable doubt each element of each offense, the State also bore "the burden to disprove beyond a reasonable doubt the defense of duress."

From our review of the jury charge in its entirety, see State v. Wilbely, 63 N.J. 420, 422 (1973), we are satisfied that the jury was correctly instructed on the law of duress and the burden of proof with respect to that defense.

III

We next address defendant's argument that the NERA consequences of his sentence on count one cannot be sustained because the judge failed to instruct the jury that the State was required to prove the NERA predicate beyond a reasonable doubt. Prior to its June 29, 2001 amendment, for a first or second degree crime to qualify for NERA applicability, it had to be established that it was a "violent crime" as defined in NERA. Because the crime in this case occurred on February 18, 2001, the pre-amendment version of NERA was applicable. State v. Parolin, 171 N.J. 223, 233 (2002). The NERA predicate asserted by the State was that in the course of committing the robbery, defendant used or threatened the immediate use of a "deadly weapon." N.J.S.A. 2C:43-7.2 (2000). Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), our Supreme Court held, in State v. Johnson, 166 N.J. 523, 543 (2001), overruled in part by Parolin, supra, 171 N.J. at 231-32, that fundamental due process concerns "require[d] that the 'violent crime' condition . . . be submitted to a jury and found beyond a reasonable doubt." See also State v. Abdullah, 184 N.J. 497, 509 n.4 (2005) (reiterating that judicial factfinding may not be used to determine NERA eligibility).

Throughout the lengthy jury instruction, in charging the jury on each of the four substantive offenses in the indictment, as well as two lesser-included offenses, the judge repeatedly referred to the "elements" of the offense, first by enumerating them, then explaining each one. On each occasion, upon enumerating them and then by way of summary at the end of the charge with respect to each offense, the judge informed the jury that the State bore the burden of proving beyond a reasonable doubt each element in order to find the defendant guilty. This format was unremarkable and followed the format prescribed in the model jury charges.

After providing general instructions on various subjects, and before commencing instructions on each individual offense, the judge made reference to the verdict sheet. He said, "Now I want to go over, before I get into the details of the elements of the crime, I think it might be appropriate to go over this verdict sheet with you . . . ." (emphasis added). The judge then referred to count one as reflected on the verdict sheet as an example and said, "I'm going to tell you what the elements are." (emphasis added). The judge then said:

I'm sorry, one other thing before I get [i]nto that lesser-included offense. You're also going to have to answer for us did the defendant use or threaten the immediate use of a deadly weapon as deadly weapon is defined under the definition of a violent crime. That's just an answer yes or no that you'll have to give. I'll give you the definitions so that you'll be able to answer that question.

[Emphasis added.]

This was the only instruction regarding the proffered NERA predicate. The instruction did not set forth any burden of proof, either as to the party bearing the burden or as to the standard of proof. The instruction did not characterize the NERA predicate as an "element" of the crime. Therefore, the jury would not have understood this to be another of those "elements" that they were repeatedly told had to be proven beyond a reasonable doubt by the State.

The interrogatory the jury answered asked:

Did the defendant use or threaten the immediate use of a deadly weapon as "deadly weapon" is defined under the definition of a violent crime?

The affirmative answer to that question, in light of the jury instruction, in no way illuminates whether the jury was convinced that the State proved that fact beyond a reasonable doubt. Accordingly, the NERA predicate is not sustainable.

There is another reason, not raised by defendant, why the NERA predicate cannot stand. The only definition given by the judge of "deadly weapon" was the following:

A deadly weapon is any firearm or other weapon, device, instrument, material, or substance which in the manner it is used or intended to be used is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.

[Emphasis added.]

This definition, drawn from N.J.S.A. 2C:11-1c, is the correct definition to elevate robbery from second-degree to first-degree, but the emphasized portion is not included in the definition of "deadly weapon" in pre-amendment NERA. See State v. Hernandez, 338 N.J. Super. 317, 322 n.4 (App. Div. 2001); State v. Mosley, 335 N.J. Super. 144, 148 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001). The judge never instructed the jury on the more restrictive definition of "deadly weapon" required to satisfy NERA. Thus, the jury was misinformed. That misinformation is particularly significant in a case such as this where an imitation handgun was used and defendant denied that either of the knives in evidence (that were found in the car) was the object that Francesci handed him.

Finally, our conclusion that the jury's finding of the NERA predicate is unsustainable is further bolstered by the fact that the jury acquitted defendant of first-degree armed robbery. The only basis alleged by the State and contained in the evidence that could have elevated the robbery to first-degree was that defendant was "armed with, or use[d] or threaten[ed] the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. By acquitting defendant of first-degree robbery but finding him guilty of second-degree robbery, the jury expressed the failure of the State to prove beyond a reasonable doubt that defendant was armed with or used or threatened the immediate use of a deadly weapon, even as more expansively defined for purposes of gradation of robbery offenses.

Because defendant did not object at trial, the plain error standard guides our determination of this issue. For the reasons we have stated, a reasonable doubt is raised in our minds as to whether the jury was led by the error to a result it otherwise might not have reached. Macon, supra, 57 N.J. at 336. The error was thus clearly capable of producing an unjust result. R. 2:10-2. Accordingly, the 85% parole disqualifier and three-year parole supervision imposed as part of defendant's sentence on count one must be vacated.

IV

With respect to count three, the only unlawful purpose for which defendant allegedly possessed a knife was to use it against Perkins in the commission of the robbery. Accordingly, the judge instructed the jury, "In this case the State contends that the defendant, Correy Burden's, unlawful purpose in possessing the weapon was to use it unlawfully against [Allen] Perkins." "When the only unlawful purpose in possessing the [weapon] is to use it to commit the substantive offense, merger is required." State v. Diaz, 144 N.J. 628, 636 (1996). That is the case here. The State concedes that merger should occur, and we so direct.

In light of our merger determination, defendant's sentence on count three will be vacated and that count will be dismissed under the doctrine of merger. Therefore it is unnecessary for us to consider defendant's argument that his sentence on count three of five years imprisonment with a three-year parole disqualifier was excessive and illegal.

Finally, we reject defendant's argument that, in light of the evidence that Perkins was robbed of $47, the judge erred in ordering $147 in restitution. The additional $100 was reflected in the presentence report as Perkins' request for compensation for the cut he received on his chin. Defendant was on notice of the claim and did not object at sentencing. We find no mistaken exercise of discretion in the inclusion of that amount in the restitution component of the sentence.

V

For the reasons stated, defendant's convictions of lesser-included second-degree robbery on count one and third-degree possession of a weapon for an unlawful purpose on count three are affirmed. The base term sentence of six years imprisonment on count one is affirmed, but the 85% parole disqualifier and three years parole supervision under NERA are reversed and vacated. Finally, the failure to merge count three with count one is reversed. We therefore remand for entry of an amended judgment of conviction to (1) delete the 85% parole disqualifier and three years parole supervision imposed on count one, and (2) vacate the sentence imposed on count three (which is dismissed under the doctrine of merger) and to reflect that count three merges with count one.

Affirmed in part; reversed and remanded in part.

The jury found defendant not guilty of the charges in counts two and four, charging him respectively with fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4e, and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(3).

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

Ordinarily, we would remand for reconsideration of the sentence imposed on count one, at which the judge could not increase the six-year base term but could consider whether to impose a discretionary period of parole ineligibility. See State v. Young, 379 N.J. Super. 498 (App. Div. 2005). Such a period of parole ineligibility could not exceed one-half of the base term, namely three years. N.J.S.A. 2C:43-6b. However, a remand for that purpose would serve no purpose in this case because defendant was sentenced on September 19, 2003 and has already served more than three years. We note that the Notice of Appeal was filed on October 11, 2005, and defendant's appellate brief was filed on March 30, 2007.

The jury's verdict is apparently inconsistent, in that defendant was acquitted of armed robbery, yet convicted of possessing a weapon for an unlawful purpose, where the only purpose was for use in committing the robbery. Thus, we note the anomaly in merging the conviction for possession of a weapon for an unlawful purpose with the conviction for unarmed robbery. We nevertheless do so, noting that it would be an even greater anomaly to not merge them.

That sentence was illegal, because a discretionary period of parole ineligibility cannot exceed one-half of the base term. See N.J.S.A. 2C:43-6b.

(continued)

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A-0619-05T4

October 31, 2007