STATE OF NEW JERSEY v. TYRONE LAWRENCE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3767-04T43767-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRONE LAWRENCE,

Defendant-Appellant.

___________________________________

 

Submitted September 11, 2007 - Decided

Before Judges Skillman and Winkelstein.

On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Indictment No. 03-02-0184.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).

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

PER CURIAM

A jury found defendant guilty of first-degree robbery, in violation of N.J.S.A. 2C:15-1; second-degree burglary, in violation of N.J.S.A. 2C:18-2; third-degree resisting arrest, in violation of N.J.S.A. 2C:29-2a(1); third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d; fourth-degree possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have, in violation of N.J.S.A. 2C:39-5d; third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(5)(c); and third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(5)(a). The jury acquitted defendant of an attempted murder and three other aggravated assault charges. The trial court sentenced defendant to an extended term of thirty-two years imprisonment for the first-degree robbery, subject to the 85% parole ineligibility period mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive three-year term for one of the aggravated assaults. The court also imposed a concurrent ten-year term for the burglary; a concurrent five-year term for possession of a weapon for an unlawful purpose; and a concurrent eighteen-month term for unlawful possession of a weapon. The court merged defendant's other convictions.

Defendant's convictions arose out of a burglary of a garage in a residential neighborhood in Paterson on July 7, 2002. An off-duty police officer, Detective Troy Bailey, was attending a family gathering at his mother's home when he observed two men he did not recognize leaving the garage area of a neighbor's home pushing a lawn mower and carrying a cooler and bags. Bailey yelled out to the two men, later identified as defendant and a confederate, Frank Gonzalez, identifying himself as a police officer. When they failed to stop, Bailey pursued the two men. Bailey found defendant hiding in bushes holding bags containing meat he had taken from a freezer in the garage. Bailey displayed his police badge and grabbed hold of defendant. Bailey asked his sister to call for police back-up and then attempted to continue his pursuit of Gonzalez while holding onto defendant.

As Bailey was doing this, defendant attempted to free himself from Bailey's grasp by elbowing and shoving him. When back-up officers in police cars approached with their sirens on, defendant intensified his efforts to escape Bailey's grasp by swinging at him with a sharp instrument, later identified as a knife, which caused serious cuts to Bailey's back, throat and face. Defendant broke free from Bailey, but the back-up officers recaptured him with Bailey's assistance.

As the officers were handcuffing defendant, he struggled to remain free. This struggle resulted in injuries to defendant. When an EMT worker responded to the scene and attempted to treat defendant, he kicked her in the chest.

Gonzalez was subsequently apprehended and testified as a witness for the State at defendant's trial. Detective Bailey's testimony regarding his apprehension of defendant was corroborated by testimony from various eyewitnesses to the incident and the back-up police officers. The EMT worker whom defendant kicked also testified for the State.

On appeal, defendant presents the following arguments:

I. THE COURT ERRED IN FAILING TO CHARGE THE JURY WITH SELF DEFENSE, THUS, DEPRIVING DEFENDANT OF A FAIR TRIAL. (Not Raised Below).

II. THE COURT'S CHARGE TO THE JURY ON THE BURGLARY AND ROBBERY COUNTS WAS ERRONEOUS AND CONFUSING, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL AND WARRANTING VACATION OF THE JUDGMENT OF CONVICTION.

A. The Court Erred In Charging The Jury On Burglary In Failing To Define All Essential Elements Of The Statute, Depriving Defendant Of A Fair Trial.

B. The Court Erred In Charging The Jury On Robbery Where It Misstated The Law.

III. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS FIRST DEGREE ROBBERY AND SECOND DEGREE BURGLARY; CONSEQUENTLY THE CONVICTIONS ON COUNT ONE AND COUNT TWO MUST BE VACATED.

IV. THE COURT IMPROPERLY DENIED DEFENDANT'S REQUEST TO DISMISS THE COUNT OF RESISTING ARREST WHERE THE STATE FAILED TO DEMONSTRATE AN ARREST OF THE DEFENDANT.

V. NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

VI. THE DEFENDANT'S SENTENCE VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

VII. THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.

We reject the arguments presented under Points I through V and VII of defendant's brief and affirm his convictions. We also affirm defendant's sentence for aggravated assault. However, we vacate the sentences for defendant's other offenses and remand for resentencing.

The only points that warrant any discussion are defendant's arguments relating to the trial court's instructions to the jury presented under Point II of his brief and the arguments relating to defendant's sentence. Defendant's other arguments are clearly without merit. R. 2:11-3(e)(2). We only note that the sufficiency of the evidence to sustain defendant's conviction for robbery is directly supported by State v. Mirault, 92 N.J. 492, 496-501 (1983) and that defendant's conviction for resisting arrest was merged into his convictions for robbery and burglary.

I

Defendant argues that his conviction for second-degree burglary must be reversed because the trial court failed in its instructions to the jury to define the term "in the course of committing," the comprehension of which is essential to distinguish second-degree from third-degree burglary.

N.J.S.A. 2C:18-2(b) provides:

Burglary is a crime of the second degree if in the course of committing the offense, the actor:

(1) Purposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone; or

(2) Is armed with or displays what appear to be explosives or a deadly weapon.

Otherwise burglary is a crime of the third degree. An act shall be deemed "in the course of committing" an offense if it occurs in an attempt to commit an offense or in immediate flight after the attempt or commission.

[Emphasis added.]

In its initial instructions regarding the elevation of burglary from a third to a second-degree offense, the trial court stated:

The person is guilty of burglary in the second degree if in the course of committing the offense that I just described to you that person purposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone or is armed with or displays what appears to be a deadly weapon.

However, the court did not instruct the jury regarding the meaning of "in the course of committing."

At the beginning of its deliberations, the jury asked the court: "What's the difference between second and third-degree burglary?" In response, the court repeated its initial instructions regarding second and third-degree burglary. At this point, defense counsel noted for the first time that the court's instructions regarding second-degree burglary did not include any definition of "in the course of committing" and requested the court to give the jury a recharge that included the statutory definition. The court granted this request and told the jury:

All right. Ladies and gentlemen and alternates, we're -- we're just very concerned that you really understand these charges. I want to just go back to the burglary charge and say to you the following, and charge you as follows:

Burglary is a crime of the second degree if, in the course of committing the offense -- now an act shall be deemed in the course of committing an offense if it occurs in an attempt to commit an offense or in immediate flight after the attempt or commission.

You would have to find that the actor purposely, knowingly, or recklessly inflicts, attempts to inflict, or threatens to inflict bodily injury on anyone, or is armed with or displays what appears to be a deadly weapon; otherwise, burglary is a crime of the third degree.

[Emphasis added.]

Defense counsel did not object to this recharge.

In response to the jury's request for another recharge regarding second-degree burglary, the court instructed the jury:

If you find beyond a reasonable doubt that the defendant committed the crime of burglary and in the course of committing that offense he purposely, knowingly, or recklessly inflicted bodily injury upon Troy Bailey, then you must find the defendant guilty of burglary in the second degree.

Now, "in the course --" Mr. DeGroot, can I have the book? That's what I used last time. I just need the burglary charge. I read that out of the book.

An act shall be deemed in the course of committing an offense if it occurs in an attempt to commit an offense or in immediate flight after the attempt or commission. That's how "in the course" is defined in the statute.

. . . .

If you find beyond a reasonable doubt that the defendant committed the crime of burglary and in the course of committing that offense as I just defined it to you he purposely, knowingly, or recklessly inflicted bodily injury upon Troy Bailey, then you must find the defendant guilty of burglary in the second degree.

[Emphasis added.]

Defense counsel did not object to this part of the court's recharge.

Thus, the trial court twice provided the jury with instructions regarding second-degree burglary that included the statutory definition of the term "in the course of committing." Therefore, assuming this definition is an essential part of an instruction regarding second-degree burglary, the court cured any error in its omission from the initial instructions by including the definition in two recharges of the jury.

II

Defendant argues that his conviction for robbery must be reversed because the trial court gave the jury erroneous instructions regarding the elements of first-degree robbery.

In order to elevate robbery from a second to a first-degree offense, the State must prove that in the course of committing a theft a defendant: (1) attempted to kill someone; or (2) purposely inflicted or attempted to inflict serious bodily injury on another; or (3) was armed with, used, or threatened the immediate use of a deadly weapon. N.J.S.A. 2C:15-1b. In this case, it was alleged that defendant attempted to kill Detective Bailey, that he attempted to inflict serious bodily injury on Detective Bailey, and that he was armed with and used a deadly weapon in the course of committing the robbery.

It is undisputed that the trial court correctly instructed the jury regarding armed robbery. However, the court initially gave an erroneous instruction regarding the other two forms of first-degree robbery by telling the jury that

A person is guilty of an attempt to kill if he purposely commits an act which constitutes a substantial step toward the commission of a killing, such as the infliction of serious bodily injury -- excuse me, such as the infliction of serious bodily harm.

This instruction conflated two alternative forms of first-degree robbery by stating that "a substantial step in a killing is the infliction of serious bodily injury," thus potentially confusing the jury regarding these forms of first-degree robbery.

However, after the trial court repeated this erroneous instruction in response to a question from the jury, defense counsel objected and the court then recognized that its initial instruction had been erroneous. Consequently, the court instructed the jury:

A section of our statute provides that robbery is a crime of the second degree, except that it is a crime of the first degree if the robber, A, attempted to kill anyone or, B, purposely inflicted or attempted to inflict serious bodily injury.

In this case, it is alleged that the defendant attempted to kill Troy Bailey while in the course of committing the theft, or the defendant purposely inflicted or attempted to inflict serious bodily injury upon Troy Bailey while in the course of committing the theft.

. . . .

In order for you to determine the answer to this question you must also understand the meaning of the word "attempt" within this context.

A person is guilty of an attempt to kill if he purposely commits an act which constitutes a substantial step toward the commission of a killing.

A person is guilty of attempt to inflict serious bodily injury if he purposely commits an act which constitutes a substantial step toward the commission of the infliction of serious bodily injury.

. . . .

If you find the State has proven beyond a reasonable doubt that the defendant committed the crime of robbery as I have defined that crime to you, but if you find that the State has failed to prove beyond a reasonable doubt as to whether defendant attempted to kill Troy Bailey or defendant purposely inflicted or attempted to inflict serious bodily injury upon Troy Bailey at the time of the commission of the robbery, then you must find the defendant guilty of robbery in the second degree.

If you find that the State has proven beyond a reasonable doubt that the defendant, while in the course of committing a theft, A, attempted to kill Troy Bailey or, B, purposely inflicted or attempted to inflict serious bodily injury upon Troy Bailey, then you must find the defendant guilty of robbery in the first degree.

In response to another question from the jury, the trial court repeated this revised instruction a second time. Defense counsel did not object to this instruction at trial and apparently concedes on appeal that it was correct.

We are satisfied that the error in the court's initial instruction was cured by the court's recharge, which it gave the jury twice. Furthermore, the infliction of serious bodily injury upon the victim of a robbery -- in this case, the infliction of stab wounds upon Detective Bailey that required more than seventy stitches to treat -- would support a conviction for first-degree robbery regardless of whether the jury also relied upon the court's erroneous charge to conclude that the infliction of serious bodily injury constituted a substantial step toward the commission of a killing. Therefore, we conclude that this instruction, which the court later corrected, did not constitute reversible error.

III

For the first-degree robbery, the trial court imposed a discretionary extended-term sentence of thirty-two years imprisonment, subject to the 85% period of parole ineligibility mandated by NERA, based on the court's finding that defendant is a persistent offender. This sentence was imposed in accordance with N.J.S.A. 2C:44-3a and N.J.S.A. 2C:43-7a(2), which establish a sentencing range between twenty years and life imprisonment for a person convicted of a first-degree offense who is sentenced as a persistent offender.

In State v. Pierce, 188 N.J. 155, 168-70 (2006), the Court held that to avoid constitutional problems under the Sixth Amendment to the United States Constitution, once a defendant's criminal record of convictions renders him or her statutorily eligible for sentencing as a persistent offender, the statutory provisions governing discretionary extended-term sentences must be construed to allow a sentence from the bottom of the ordinary term sentencing range, which is ten years in the case of a first-degree offense, N.J.S.A. 2C:43-6a(1), to the top of the extended term range, which is life imprisonment in the case of a first-degree offense, N.J.S.A. 2C:43-7a(2). Because the trial court sentenced defendant to an extended term as a persistent offender before Pierce was decided, the court necessarily proceeded on the assumption that the applicable sentencing range was twenty years to life rather than ten years to life. Therefore, defendant must be resentenced for the armed robbery in conformity with Pierce.

For the burglary conviction, the trial court sentenced defendant to a concurrent ten-year term of imprisonment, which is three years longer than the presumptive seven-year term for a second-degree offense, N.J.S.A. 2C:44-1f(1)(e). For the third-degree possession of a weapon for an unlawful purpose conviction, the court sentenced defendant to a five-year term of imprisonment, which is one year longer than the presumptive four-year term for a third-degree offense. N.J.S.A. 2C:44-1f(1)(d). For the unlawful possession of a weapon conviction, the court sentenced defendant to an eighteen-month term, which is nine months longer than the presumptive nine-month term for a fourth-degree offense. N.J.S.A. 2C:44-1f(1)(e).

In State v. Natale, 184 N.J. 458, 466 (2005), the Court held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." "To bring the code [of Criminal Justice] into compliance with the Sixth Amendment in a way that the Legislature would have intended," the Court "eliminate[d] presumptive terms from the sentencing process." Ibid. Therefore, under Natale, a trial court is now required to sentence a defendant within the statutory range, after identifying and weighing applicable mitigating and aggravating factors, "without reference to presumptive terms." Ibid. This holding applies to any defendant with a case "on direct appeal as of the date of [the Natale] decision." Id. at 494. Because the trial court sentenced defendant to a term in excess of the presumptive term for burglary, possession of a weapon for an unlawful purpose and unlawful possession of a weapon and his case was on direct appeal when Natale was decided, he must be resentenced in conformity with Natale.

 
Accordingly, we affirm defendant's convictions and the three-year sentence imposed upon him for the aggravated assault. We vacate defendant's sentence for armed robbery and remand for resentencing in conformity with Pierce. We also vacate defendant's sentences for burglary, possession of a weapon for an unlawful purpose and unlawful possession of a weapon and remand for resentencing in conformity with Natale.

We note that the model jury instructions for second degree burglary do not contain any definition of "in the course of committing." See Model Jury Charges (Criminal), 2C:18-2b Burglary in the Second Degree (1997).

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A-3767-04T4

October 2, 2007