STATE OF NEW JERSEY v. RONALD THOMPSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2913-05T42913-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD THOMPSON,

Defendant-Appellant.

________________________________________

 

Submitted March 28, 2007 - Decided July 30, 2007

Before Judges Stern, A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-11-1571.

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

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

PER CURIAM

Following a jury trial, defendant, Ronald Thompson, was convicted of second degree robbery, N.J.S.A. 2C:15-1a(1), as alleged in a one-count indictment. The judge denied the State's motion for extended-term sentencing and imposed a nine-year term with a NERA parole disqualifier. We affirm.

These are the proofs presented by the State. Christine Yager testified that on July 6, 2004, at approximately 10:15 a.m., she was confronted by defendant in front of a small supermarket on Main Street in Passaic. Defendant said to her several times, "what do you got?" He then took the currency out of her hand and walked away with it. Yager followed defendant demanding that he return her money. He ignored her. Yager confronted him more forcefully by getting in front of him, and demanding, "give me my money." Defendant responded that "he didn't have [her] fucking money." Then he backhanded her across the face. Defendant grabbed Yager's arm and said that if she kept demanding money from him, he would "smack [her] down." Finally, defendant asked her, "do you feel me?"

Lisa Greer, a uniformed parking enforcement officer, witnessed the confrontation. She used her radio to contact the police. Officer Claudia Aguirre was dispatched to the scene. Aguirre spoke with Yager, who reported that a man had taken $36 from her, and when she confronted him, he hit her in the face, grabbed her arm and walked away. Aguirre radioed the description of the suspect and the direction of travel to other police units.

Detective Marco Clavijo testified that he heard Aguirre's report. He searched the immediate area for someone matching the description. After looking for approximately three minutes, he observed defendant, who fit Aguirre's description. Clavijo exited his patrol vehicle and detained defendant. Clavijo radioed Aguirre and requested that she bring the witness to his location.

Yager positively identified defendant as the man who took her money and assaulted her. Greer arrived at the scene. She also identified defendant as the man who struck Yager. Defendant was arrested and searched. Clavijo recovered $36 from defendant's pocket.

Defendant did not testify or present witnesses on his own behalf. At the conclusion of all testimony, the judge held a charge conference. Defense counsel asked for a jury instruction on the lesser-included offenses of theft from the person and simple assault. The judge and Assistant Prosecutor agreed that these instructions were required. The judge instructed the jury as follows:

The law recognizes a proposition known as lesser-included offenses. The lesser-included offense of robbery is a crime called "theft from the person." You're going to have the option of considering that charge.

. . .

So those are the options: robbery, theft from the person, the lesser-included offense of robbery, . . . simple assault, the lesser-included offense of theft from the person. And it's a descending order for you. If you find [defendant] guilty of robbery you're finished. If you find not guilty, you consider whether or not defendant is guilty or not guilty of theft from the person. If you find guilty, you're finished deliberating. If you find not guilty, you go on to consider whether or not [defendant] is guilty of simple assault.

There was no objection to this charge. The judge gave the jury a verdict sheet with similar instructions regarding the sequence or order of deliberations. The jury found defendant guilty of robbery and did not consider the lesser-included offenses.

I

On appeal, defendant contends:

THE COURT'S ERRONEOUS INSTRUCTION, WHICH TOLD THE JURY THAT IT COULD NOT CONSIDER THE OFFENSE OF ASSAULT UNLESS IT FIRST ACQUITTED THE DEFENDANT OF THEFT FROM THE PERSON, DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL (Not Raised Below).

Specifically, defendant argues that because the judge told the jury, "not to deliberate on the assault charge unless it first acquitted the defendant of the lesser-included offense of theft from the person," the judge "effectively precluded a verdict on the assault charge." Defendant argues that this error deprived him "of his Sixth and Fourteenth Amendment rights to due process of law and a fair trial, and his corresponding rights under the New Jersey Constitution." We disagree.

Defendant relies on State v. Villanueva, 373 N.J. Super. 588, 595 (App. Div. 2004), State v. Grissom, 347 N.J. Super. 469, 472 (App. Div. 2002), and State v. Jordan, 240 N.J. Super. 115 (App. Div.), certif. denied, 122 N.J. 328 (1990). In all three cases, the defendant's conviction was reversed because the trial court did not charge a lesser-included offense, when "the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Brent, 137 N.J. 107, 117 (1994) (citing N.J.S.A. 2C:1-8d); State v. Sloane, 111 N.J. 293, 300 (1988); see N.J.S.A. 2C:1-8e. However, those cases are distinguishable from this one, because here, the judge gave the jury the requested lesser-included offense, theft and simple assault; albeit, in a sequence that defendant now disputes.

We note that the jury found defendant guilty of robbery. Therefore, the jury never considered theft or simple assault as lesser-included offenses. We find no error in asking the jury to consider lesser-included offenses in sequence. It is settled that, "ordinarily, juries may not consider lesser-included offenses until they have acquitted of the greater offense." State v. Cooper, 151 N.J. 326, 366 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000); State v. Josephs, 174 N.J. 44, 92 (2002); State v. Harris, 141 N.J. 525, 552-53 (1995). The rationale behind the sequential ordering of greater and lesser-included offenses is that the jury must convict of the crime supported by the evidence, and not return a compromise verdict between jurors who want the greater charge and jurors who want to acquit. See Harris, supra, 141 N.J. at 553 ("[I]t is the duty of the jury not to reach compromise verdicts based on sympathy for the defendant or to appease holdouts, but to render a just verdict by applying the facts it finds to the law it is charged.").

Thus, if jurors are split between the greater and lesser charges, the result should be an acquittal of the greater charge, and presumably conviction of the lesser-included offense. But, "[t]here is nothing inherently wrong with sequential charges, which usually provide a framework for orderly deliberations." State v. Feaster, 156 N.J. 1, 35 (1998), aff'd by, 165 N.J. 388 (2000), cert. denied, Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001) (quoting Cooper, supra, 151 N.J. at 369); Josephs, supra, 174 N.J. at 92 (2002); see Harris, supra, 141 N.J. at 552-53 (reasoning that the theory supporting a sequential charge is to have the jury convict defendant of an offense which is supported by evidence, rather than reaching a compromise verdict); see State v. Johnston, 257 N.J. Super. 178, 196 (App. Div. 1992) ("Juries are consistently told not to consider the lesser-included offenses unless they first find the defendant not guilty of the greater offense."); see also State v. Perry, 124 N.J. 128, 164-65 (1991) (approving sequential charge for non-felony-murder offenses); State v. McAllister, 211 N.J. Super. 355, 365 (App. Div. 1986).

Here, defendant requested that the judge charge theft and simple assault as lesser-included offenses. Therefore, the judge had to employ a different procedure to determine whether a lesser included charge should be given, than if the defendant objected. Brent, supra, 137 N.J. at 115. "[W]hen a defendant requests a charge to the jury on a lesser offense, our case law has held that whether the lesser offense is strictly 'included' in the greater offense, as defined by N.J.S.A. 2C:1-8d, is less important to a trial court's determination to charge the offense than whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." Ibid.; see State v. Purnell, 126 N.J. 518, 531 (1992) (holding that defendant was entitled to felony-murder charge, although not strictly speaking lesser-included offense of murder); see State v. Mancine, 124 N.J. 232, 265 (1991) (Stein, J., concurring) (stating that "in certain circumstances, subject to the requirements of fair notice, an offense not meeting the Code's definition of lesser-included offense should be charged to the jury if it is supported by the evidence"); Sloane, supra, 111 N.J. at 300, (stating that N.J.S.A. 2C:1-8d is "not all-encompassing" and categories of lesser-included offenses are "not water-tight compartments," so that offenses other than those encompassed by that statute may be lesser-included and properly charged to jury); see also Model Penal Code and Commentaries, 1.07 comment at 132 ("[C]ourts have taken the position that while the Constitution requires that the prosecution be limited to those offenses of which the defendant had notice, it does not require that the defendant be so limited, and have held that the defendant is entitled to an instruction on a lesser offense, whether included or not, whenever under the evidence a jury may find him guilty of the lesser and not guilty of the greater offense.").

As stated above, the judge did give the charges requested by defendant. What defendant really challenges here is that the judge did not treat simple assault as a lesser-included offense of robbery and this deprived the jury from choosing between a robbery and simple assault scenario, or finding defendant not guilty of robbery and guilty of both theft and simple assault. He hypothesizes that the jury could have found that: there was no robbery, just a theft followed by a simple assault after the theft was completed. Considered in the abstract, simple assault can be a lesser-included offense of robbery. Therefore, it might have been preferable if the judge had instructed the jury to consider the theft and simple assault charges, if it first acquitted defendant of robbery. Conceivably, the proofs could have justified a finding that defendant was guilty of two distinct offenses, i.e., theft and simple assault, but not a continuous offense of robbery in the second degree. However, considering the proofs in this case as a whole, we must reject the argument that a reversal is warranted due to the sequential charge given here. Defendant did not object to the charge. Therefore, the analysis on appeal must be pursuant to the plain error. R. 2:10-2, State v. Bash, 180 N.J. 534, 541 (2004). Applying the plain error standard to a jury charge error, we conclude that a reversal is not warranted. The charge as a whole was satisfactory, as it accurately related to the jury the elements of the three potential offenses. We discern no plain error in the court's sequential instruction in the absence of a timely objection to it by trial counsel. R. 2:10-2.

II

THE JUDGE'S CHARGE ON ROBBERY DID NOT SUFFICIENTLY EXPLAIN THE CONCEPT OF "IMMEDIATE FLIGHT" UNDER THE FACTS OF THIS CASE, REQUIRING REVERSAL OF DEFENDANT'S CONVICTION (Not Raised Below).

Specifically, he argues that the judge's charge on robbery failed to properly explain the concept of "immediate flight." We disagree.

Because the defendant raises this issue for the first time on appeal, the claimed error must be analyzed pursuant to the plain error rule. R. 1:7-2; State v. Bunch, 180 N.J. 534, 541 (2004). Further, it is settled that a jury must receive adequate and understandable instruction in order for a defendant to have a fair trial. State v. Fortin, 178 N.J. 540, 625 (2004); State v. Afanador, 151 N.J. 41, 54 (1997) (citing State v. Martin, 119 N.J. 2, 15 (1990)). "Correct jury instructions are at the heart of the proper execution of the jury function in a criminal trial." Afanador, supra, 151 N.J. at 54 (quoting State v. Alexander, 136 N.J. 563, 571 (1994)).

Within the context of a jury charge, plain error has been defined as, "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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. Chapland, 187 N.J. 275, 289 (2006) (quoting 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)); State v. Jordan, 147 N.J. 409, 422 (1997). Accordingly, "the alleged error is viewed in the totality of the entire charge, not in isolation." Chapland, supra, 187 N.J. at 289; State v. DiFrisco, 137 N.J. 434, 491 (1994). A finding of plain error depends upon an evaluation of the overall strength of the State's case. Chapland, supra, 187 N.J. at 289.

Generally, when the judge follows the model jury charge "and is consistent with controlling New Jersey precedent," we will not find plain error. State v. Rodriguez, 365 N.J. Super. 38, 53-54 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).

Here, the judge's charge on robbery followed the Model Jury Charge. The judge instructed as follows:

"A person is guilty of robbery if, in the course of committing a theft, he knowingly inflicts bodily injury or uses force upon another."

In order then for you to find the defendant guilty of robbery, the State is required to prove each of the follow elements beyond a reasonable doubt.

One, that the defendant was in the course of committing a theft, and, two, that while in the course of committing that theft, the defendant knowingly inflicted bodily injury or used force upon another; namely Christin[e] Yager.

As I have said, the State must prove beyond a reasonable doubt that the defendant was "in the course of committing a theft." In this connection, you are advised that an act is considered to be "in the course of committing a theft" if it occurs in an attempt to commit the theft, during the commission of the theft or in immediate flight after the attempt or commission.

There was no objection to this charge. Therefore, we presume that trial counsel did not perceive any prejudice in the charge. City of Linden, County of Union v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div. 2004); see State v. Macon, 57 N.J. 325, 333 (1971) (inferring that if a defendant fails to object at trial, the error was believed to "of no moment"); see also State v. Wilbely, 63 N.J. 420, 422 (1973) ("The failure to object points up the fact that experienced counsel did not consider that the use of the words detracted from the clear meaning which the charge as a whole conveyed.").

Defendant argues that this instruction was incomplete because the judge did not define the term "immediate flight." The jury did not ask for additional instructions as to the meaning of immediate flight. There is nothing to indicate that the jury either was confused or misunderstood the judge's instructions.

In the absence of an objection or a request for further definition, it is assumed that the instruction, which tracked the Model Jury Charge, does not warrant a reversal. The charge, as delivered, included accurate statements of the law, particularly when read as a whole and viewed in its entirety.

III

Defendant also contends that:

THE IMPOSITION OF A SENTENCE JUST ONE YEAR SHORT OF THE MAXIMUM FOR THIS CRIME WAS CONTRARY TO THE CRIMINAL CODE AND AN ABUSE OF THE COURT'S DISCRETION.

We disagree.

Defendant was forty-six years old at the time of sentencing. He had a history of five indictable and five disorderly persons convictions. He has been sentenced to State prison on three occasions. Each time he was released on parole, the parole was revoked. He has also been convicted of violating probation three times.

The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3) the risk that defendant will commit another offense; (6) the extent and seriousness of defendant's prior criminal record; and (9) the need for specific and general deterrence from law. The judge also found two of the mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (2) defendant did not contemplate that his conduct would cause or threaten serious harm; and (11) the imprisonment of defendant would entail excessive hardship to himself or his dependents. The judge imposed a nine-year term, finding that the aggravating factors preponderated. He also imposed a mandatory parole disqualifier pursuant to NERA.

From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. Josephs, supra, 174 N.J. at 86; State v. Johnson, 42 N.J. 146, 161-62 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. Dalziel, 182 N.J. 494, 501-02 (2005); State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. Dalziel, supra, 182 N.J. at 501; State v. Roth, 95 N.J. 334, 364-65 (1984).

We conclude that the sentence complies with the mandates of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005). Defendant was sentenced on December 9, 2005, several months after the August 5, 2005 Supreme Court's decision in Natale. Prior to Natale, in order to stay within the boundaries of Blakely v. Washington, a judge could only increase the sentence above the presumptive term by utilizing aggravating factors that were either based upon recidivistic factors, Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000); Abdullah, supra, 184 N.J. at 506 & n.2, or when defendant "stipulates to the relevant facts or consents to judicial factfinding." Natale, supra, 184 N.J. at 495. With Natale's judicial removal of the presumptive terms from the New Jersey Criminal Code, the "'statutory maximum' authorized by the jury verdict . . . is the top of the sentencing range for the crime charges, e.g., ten years for a second-degree offense, N.J.S.A. 2C:43-6(a)(2)." Natale, supra, 184 N.J. at 487. This sentence does not violate the post-Natale sentencing scheme.

 
Accordingly, we affirm the conviction and sentence.

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

(continued)

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A-2913-05T4

July 30, 2007