STATE OF NEW JERSEY v. TROY REEVES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3186-05T43186-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TROY REEVES,

Defendant-Appellant.

_________________________________

 

Submitted March 5, 2007 - Decided March 15, 2007

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of

New Jersey, Law Division, Ocean County,

05-02-0191.

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

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Senior Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

Following trial, a jury convicted defendant, Troy Reeves, of robbery, N.J.S.A. 2C:15-1, and aggravated assault, N.J.S.A. 2C:12-1b(1). The judge imposed a sentence of fifteen years with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery conviction and a concurrent seven-year term on the aggravated assault conviction. Defendant appeals and we affirm the conviction but remand for modification of the sentence.

On September 12, 2003, Joseph Grosz was standing near the Lakewood Bus Terminal, waiting for the arrival of his daughter. His sixteen-year-old son, Bryce, was waiting in Grosz's truck. The lights at the terminal were on and visibility was good. At approximately 9:50 p.m., Grosz saw two black men, one wearing a red sweatjacket, and later identified as defendant, and another unidentified individual "huddling" around a white man, saying "[y]ou're going to give it to me, you're going to give it to me, give me it, you know, I'm going to hurt you, I'm going to hurt you." Defendant and the other individual began hitting the man. The man fell to the ground. They then began kicking the victim in the head, neck, face, and ribs. Eventually, defendant reached into the man's pocket and took what Grosz believed was a wallet.

An older black man, who appeared to know the perpetrators, approached and told them "[l]eave it alone . . . you did what you did, get out of here, the police are going to come." The two attackers hit the victim one or two more times. Defendant then walked up to the several commuters standing around the platform, lifted his red sweatjacket, revealing a forty-five caliber handgun, and said, "[a]ny fucking body talks to the police, you're fucking dead." Grosz was close enough to defendant to reach out and touch the gun.

The two men left the platform. Grosz began to follow them. When Grosz realized he did not have his cell phone, he ran back to the terminal, got a phone from Bryce, and told Bryce that when the police arrived to tell them that he was following the two perpetrators. Grosz resumed following the two individuals, caught sight of them again for a short time, but lost them as they rounded a corner.

After the police arrived, Grosz pointed out the people who were in the area during the assault, as well as the older man who interceded. After talking to the various people, the police were able to develop a suspect. Later that evening, Grosz was shown a photograph array and identified defendant as the man wearing the red sweatjacket. The victim, James Gruber, was unconscious and did not have his wallet. Approximately one week later, Gruber's mother identified the victim as her son. At the time, he was still unconscious. After he regained consciousness, he could not recall the robbery. He suffered blunt-force trauma to the head, a fractured skull, fractured ribs, and sixteen stitches on his eye. The left side of his body was weakened, requiring him to use a cane to walk, and his speech was affected. When he regained consciousness, he realized his wallet, containing his social security card, birth certificate, County ID, and some loose papers was missing. Grosz and Gruber admitted to prior criminal convictions.

On appeal, defendant raises the following points:

POINT ONE

THE DEFENDANT'S CONVICTIONS MUST BE REVERSED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below.)

POINT TWO

AS THIS CASE TURNED SOLELY UPON THE CREDIBILITY OF ONE STATE'S WITNESS, THE COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENSE COUNSEL'S REQUEST THAT THE COURT CHARGE THE JURY WITH RESPECT TO THE DOCTRINE OF "FALSE IN ONE, FALSE IN ALL."

POINT THREE

THE CONVICTION FOR AGGRAVATED ASSAULT (Count Two) SHOULD HAVE MERGED INTO THE FIRST- DEGREE ROBBERY CONVICTION (Count One).

POINT FOUR

THE SENTENCE IMPOSED WAS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

Defendant asserts that the State's evidence was "meager," consisting of one eyewitness, Grosz, whose credibility was called into doubt by some inconsistent testimony brought out in cross-examination. He contends that the proofs presented by the State were, therefore, insufficient to support the guilty verdict. Defendant's failure to timely move for a new trial ordinarily precludes us from determining whether the verdict was against the weight of the evidence. R. 2:10-1; State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). Where, however, such a motion is made, the trial judge is obliged to grant the motion "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law." Dolson v. Anastasia, 55 N.J. 2, 7 (1969).

Defendant's challenge to the sufficiency of the evidence is essentially directed at the credibility of the eyewitness who described the conduct and made an in-court identification. Matters of credibility are within the exclusive dominion of the jury. State v. Butler, 32 N.J. 166, 196 (1960), cert. denied, 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960); see also State v. Locurto, 157 N.J. 463, 474 (1999). When viewed in a light most favorable to the State, the evidence clearly established defendant's guilt beyond a reasonable doubt. See State v. Reyes, 50 N.J. 454, 458-59 (1967). Defendant's contentions to the contrary are without merit.

The judge rejected defendant's request to charge "false in one false in all." Instead, he advised counsel that he was "charging the jury on the standards that they can utilize to judge credibility." He added that he "never charge[s] false in one, false in all."

The following two samples of the charge appear in Section 1.12M of The Model Civil Jury Charges:

(Sample l)

If you believe that any witness deliberately lied to you, on any fact significant to your decision in this case, you have the right to reject all of that witness's testimony. However in your discretion you may believe some of the testimony and not believe other parts of the testimony.

(Sample 2)

If you believe that any witness or party willfully or knowingly testified falsely to any facts significant to your decision in the case, with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it.

The "false in one, false in all" charge is optional and may be given "in any situation in which [the judge] reasonably believes a jury may find a basis for its application." State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961). The decision whether to give it or not is discretionary with the trial judge. The charge does "not apply unless the witness willfully testified falsely to some material fact." State v. D'Ippolito, 22 N.J. 318, 324 (1956). The inconsistencies in Grosz's testimony pointed out by defendant respecting his cell phone, referring to his stepson as his son, the manner in which defendant raised his sweatjacket to show the handgun, and the distance from which Grosz followed the two perpetrators, as well as the time of day and Grosz's ability to see and accurately recount what he saw, do not implicate willful fabrication. Moreover, the judge gave a thorough charge on prior inconsistent statements of witnesses and credibility, and the use of prior convictions as it related to the testimony of both Grosz and Gruber. The propriety of the instructions given are not challenged, only the failure to charge "false in one false in all." Indeed, the instructions given were comprehensive and appropriate and achieved the proper balance. We see no basis to intervene.

Lastly, we address the contentions regarding the fifteen-year term imposed and the judge's failure to merge the aggravated assault and robbery convictions. Defendant does not challenge the judge's finding of two aggravating factors, specifically N.J.S.A. 2C:44-1a(3), risk of another offense, and (9) deterrence. Instead, he argues that his sentence was excessive, that he should have received the minimum term of ten years because he was only nineteen years old at the time of the offense, had just one prior adult conviction (assault on a police officer, N.J.S.A. 2C:12-1b(5)(a), for which he received two years probation), and earned his GED while in the county jail. We are satisfied, from our review of the record and defendant's arguments, that the fifteen-year term imposed on the robbery conviction is neither manifestly excessive nor unduly punitive and does not constitute an abuse of discretion. See State v. Ghertler, 114 N.J. 383, 393 (1989); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

The State concedes, however, that the failure to merge the aggravated assault conviction with the robbery conviction was error. See State v. Mirault, 92 N.J. 492, 503-04 (1983). Accordingly, we affirm the conviction but remand for modification of the sentence and the judgment of conviction to reflect the merger of defendant's aggravated assault and robbery convictions.

 

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A-3186-05T4

March 15, 2007