STATE OF NEW JERSEY v. JACOB L. BENNETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3852-05T43852-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JACOB L. BENNETT,

Defendant-Appellant.

___________________________________________

 

Submitted October 17, 2007 - Decided November 5, 2007

Before Judges Parker and Lyons.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-04-0383.

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

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara Liebman, Assistant Prosecutor, of counsel, on the statement in lieu of brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Jacob Bennett (Bennett) appeals from his conviction on robbery, aggravated assault, possession of a weapon, and conspiracy charges and the sentence imposed. We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On June 23, 2003, co-defendant Johnny Howell (Howell), then seventeen years old, and Bennett, then twenty-four years old, needed money. The two men came up with an idea to rob a store. They planned to throw bleach, carried in a Snapple bottle, in the face of a store-owner, and then steal some money.

Howell filled a bottle with bleach at Bennett's house and put it into his pocket. The co-defendants then took a bus from Westfield to Rahway and "checked out" various stores to rob. After going into two or three stores, Bennett chose one particular store to rob, Rosen's Confectionary (Rosen's). According to Howell, Bennett chose Rosen's because it was the "easiest looking store to rob."

According to the plan, it was Howell's job to throw the bleach into the store owner's face and Bennett's job was to get the money. When Howell entered Rosen's, Ashok Patel (Patel), the store owner, was working. Howell threw the bleach in Patel's face. Contrary to the plan, Patel, who was wearing glasses, picked up the phone and began to dial. Their plan failing, the two then ran out of the store and took the bus back to Westfield.

On July 14, 2003, Bennett, who had his jaw conspicuously wired at the time, called Howell and told him to get dressed and to bring a baseball bat. Howell hid a green, aluminum baseball bat down his pants leg and met Bennett at the bus stop. Once Howell arrived, Bennett again discussed the idea of robbing Rosen's. The co-defendants rode a bus to Rahway again.

Upon reaching Rahway, Bennett and Howell first went to a house belonging to relatives of Bennett's, the Cherrys. Chintan Patel, the son of Ashok Patel and friend of the Cherrys, was there and spoke to the two. Only Bennett, who was identified by his build and the wired jaw, spoke back to the younger Patel.

Bennett and Howell then proceeded to a nearby church where they sat on the stairs. Auston Gabriel (Gabriel), then about thirteen years old, walked out of Rosen's, which was two buildings away from the church, and rode his bike past the church. He saw two black men, one with "some type of metal in his mouth," sitting on the stairs of the church. The one with "metal in his mouth" asked Gabriel who was in the store, to which Gabriel responded that an "older Indian guy" was there.

Bennett and Howell devised a plan that Howell, using the baseball bat, would attack the store owner and whomever else was in the store and Bennett would get the money. According to Howell, this was Bennett's idea. The two men then proceeded to Rosen's.

When Howell first walked into the store, he did not see any customers; he only saw Patel. Howell then started to beat Patel with the bat "numerous times" until Howell believed Patel to be unconscious. Next, Howell saw a customer, Harry G. Brown (Brown), a florist from Kendall Park, and began to beat him with the bat. As Howell was beating Brown with the bat, Bennett got the money from the register. At some point, Bennett locked the front door.

Brown believed that somebody knocked on the door and left, presumably to call the police. At this time, Howell stopped hitting with the bat. Billy Lambracopoulos (Lambracopoulos), in fact, testified that he did attempt to open the door to Rosen's, but could not open the door. At first, he thought that the store was closed, but then he saw an "incident" inside involving Patel and two black males. Lambracopoulos then ran next door to an antiques store and told the shopkeeper to call 911.

Bennett and Howell planned on escaping through the back door. Instead of a back door, however, they found a bathroom, leaving no egress except through the front door. Brown testified that Bennett unlocked and opened the door and the men ran off in the direction of the church. Lambracopoulos testified that he saw the two black males wearing jeans and white T-shirts walking away in the direction of the church at a fast pace while "putting stuff down their pockets."

Ralph Burla (Burla), a taxi driver, picked Bennett up a block away from Rosen's. Burla testified that Bennett had "something in his mouth like some kind of piece, like a wired piece" and that Bennett was wearing a white T-shirt and jeans. First, Bennett requested to be dropped off in Linden. When he arrived there, however, he changed his mind. Instead, Bennett was dropped off at a Pathmark on South Avenue in Cranford.

Later in the day, Bennett met up with Thomas Lee (Lee) in Westfield. Lee testified that Bennett was wearing jeans and a white T-shirt and walked with a limp. First, Bennett told Lee that "[i]f anyone asks you about what I'm going to tell you . . ., tell them I was with you, cutting your lawn at your house." Bennett then told Lee that he was in Rahway by the house of a relative named Cherry and that Bennett and another man robbed a store. Bennett then told Lee that the other man beat the owner and a customer "with a hammer" and that they "didn't look good" and were, perhaps, dead.

Additionally, Bennett said that there was a previous "altercation" with the same store owner in which bleach was thrown. Bennett also told Lee that a relative of the store owner questioned Bennett about the bleach incident on the day of the July 14, 2003, robbery. Lee subsequently contacted the police because he "wanted to clear [him]self from anything further happening."

Meanwhile, Howell did not have money for bus fare, so he asked people for money until he had enough to take the bus home. On the bus, he gave the baseball bat to a boy. Later, Bennett met up with Howell and gave him $200 from the proceeds of the robbery. This was supposed to be one-half of the money taken from the store, which was about $5000.

As a result of the beating, Patel suffered a very large gash in the back and side of his head. Brown received compound fractures in his arm and an injury to his head requiring nine staples. Even after nearly a year of physical therapy and rehabilitation, he still suffers from decreased strength and dexterity.

Following the robbery, Gabriel returned to Rosen's when he discovered that it had been robbed. He then went to the police station and gave a statement. Additionally, he identified two pictures, one of which was Bennett, that he thought could have been the man sitting on the stairs, although he was not completely sure.

Patel also gave the police a statement. He stated that two black males entered and hit him with a bat. The police were able to put together an initial description of the assailants, two black males in jeans and white T-shirts, from eyewitnesses and broadcasted it to the other officers who were canvassing the area.

Based on the unique description of Bennett gathered from the various witnesses, the police were able to match the description to a name. In addition to the wired jaw, it was reported that Bennett walked with a limp due to a "bad bunion on his left foot." On August 26, 2003, Bennett was arrested for the robbery at Rosen's. The police then matched known associates of Bennett's to the descriptions of the second robber and were able to identify Howell.

On December 11, 2003, Howell's eighteenth birthday, the Rahway police came to Howell's house. Howell voluntarily went to the station with the police. He was read his rights and waived them. After speaking to his aunt for ten to fifteen minutes on the telephone, he gave the police a statement regarding the July 14, 2003, robbery.

In April 2004, Howell pled guilty to two robberies and aggravated assault, receiving a ten year sentence which required he serve eighty-five percent of the sentence as a mandatory minimum. Additionally, Howell pled guilty to first-degree robbery for the June 23, 2003, incident. As part of his plea agreement, he asked to be housed in South Wood State Prison.

Bennett was indicted on April 29, 2004. He was charged with: (1) first-degree robbery pursuant to N.J.S.A. 2C:15-1; (2) second-degree aggravated assault (serious bodily injury) pursuant to N.J.S.A. 2C:12-1(b)(1); (3) third-degree aggravated assault (bodily injury with deadly weapon) pursuant to N.J.S.A. 2C:12-1(b)(2); (4) third-degree possession of a weapon for an unlawful purpose pursuant to N.J.S.A. 2C:39-4(d); (5) second-degree conspiracy to commit robbery pursuant to N.J.S.A. 2C:5-2 and 2C:15-1; and (6) second-degree conspiracy to commit robbery pursuant to N.J.S.A. 2C:5-2 and 2C:15-1.

On July 26, 2005, Judge Joseph P. Perfilio heard defendant's motion to sever count five, the conspiracy charge relating to the June 23 robbery, from the rest of the indictment pursuant to Rule 3:7-6. Defense counsel argued that the June 23 incident was not part of the same scheme or plan and was more prejudicial than probative. The State asserted that this was a common scheme and plan. It also cited the similarities between the June 23 and July 14 incidents. The judge found that, based on clear and convincing evidence, that the Cofield test was satisfied. Additionally, Judge Perfilio found that the evidence was extremely probative of a common scheme or plan and that the probative value outweighed any prejudice. He also noted that there would be curative instructions to the jury. Therefore, the judge denied the motion to sever count five and the trial followed.

At the trial, Judge Perfilio charged the jury. As part of his charge, he discussed the testimony of Howell:

Now, we had testimony of Johnny Howell. Johnny Howell had a criminal record. Prior criminal history. That relates in some ways to credibility. He has previously been convicted of a crime, and the evidence -- this evidence that he's been convicted of a crime may only be used by you in determining the credibility or believability of the witness' testimony.

. . . .

If, with regard to Mr. Howell's testimony, Mr. Howell was testifying on behalf of the State, he was a defendant in this case before he admitted his guilt and testified on behalf of the State.

The law requires that the testimony of such a witness be given careful scrutiny. In weighing this testimony, therefore, you may consider whether he has a special interest in the outcome of the case, and whether his testimony was influenced by the hope, or expectation of a favorable treatment, or a reward, or by feelings of revenge or reprisal.

Judge Perfilio charged the jury with regards to prior bad acts evidence, and warned the jurors that:

[Y]ou may not use the evidence to decide that the defendant has a tendency to commit crimes and that he's a bad person, or that he has a predisposition to commit crimes, therefore, he must be guilty of [the] July 14th crime.

That is, you may not decide that, just because the defendant has committed other crimes or wrongful acts, that he must be guilty of the present crime.

I've admitted that evidence only to help you decide the specific question as to whether or not there was a plan, or a scheme.

On August 3, 2005, the jury returned its verdict: guilty on all counts.

On December 2, 2005, Bennett was sentenced. Defense counsel asked that Bennett receive a lighter sentence and 121 days jail credit from the date he was found guilty, despite his violation of probation charge. The State asked for a maximum sentence for the robbery with ten years "flat" for the conspiracy count to run consecutive to the robbery sentence. The prior prosecutor and defense counsel, however, had signed a pre-trial memorandum which indicated that the maximum sentence was twenty years with a maximum parole ineligibility of seventeen years to which Judge Perfilio believed he was bound.

The judge then sentenced Bennett finding that the crime was "heinous, and cruel, and depraved." Based on the nature and circumstances of the offense and Bennett's extensive criminal history and juvenile record, the judge found that this behavior needed to be deterred. In light of the pre-trial memorandum, however, Judge Perfilio sentenced Bennett to "20 years in New Jersey state prison, with 85 percent parole ineligibility."

This appeal ensued. In his appeal, Bennett, through his counsel, raised the following points for the court's consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SEVER COUNT V FROM THE REMAINING COUNTS OF THE INDICTMENT.

POINT II

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

In addition, Bennett raised the following in a pro se supplemental letter brief:

POINT I

DEFENDANT WAS DENIED A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE COURT FAILED TO INFORM THE JURY THAT THE CO-DEFENDANT'S PLEA AGREEMENT COULD NOT BE USED AS SUBSTANTIVE EVIDENCE OF DEFENDANT'S GUILT AND COUNSEL FAILED TO OBJECT TO THE OMISSION.

The decision to sever offenses pursuant to Rule 3:15-2 resides within the sound discretion of the trial judge. State v. Krivacska, 341 N.J. Super. 1, 37 (App. Div.), certif. denied, 170 N.J. 206 (2001). The appellate court should not reverse the denial of a severance motion in the "absence of a clear showing of a mistaken exercise of discretion." Id. at 38. Court rules provide for both the charging of multiple offenses on the same indictment and the severing of charges that prejudice the defendant. First, Rule 3:7-6 provides:

Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.

[R. 3:7-6.]

Next, Rule 3:15-2(b) states that, "If for any other reason it appears that a defendant . . . is prejudiced by a permissible or mandatory joinder of offenses . . . the court may order an election or separate trials of counts . . . or direct other appropriate relief." R. 3:15-2(b). "As to joinder of crimes, the evolving test is that separate crimes have a sufficient nexus to each other to justify joinder if proof of one crime would be admissible as proof of the other pursuant to N.J.R.E. 404(b)." Pressler, Current N.J. Court Rules, comment 2.3.1 on R. 3:15-2(b) (2008). See also State v. Morton, 155 N.J. 383, 451 (1998); State v. Chenique-Puey, 145 N.J. 334 (1996); State v. Oliver, 133 N.J. 141, 151-53 (1993).

The defense made a motion prior to trial to sever count five of the indictment, charging the defendant with conspiracy to commit robbery on June 23, 2003, from the remaining counts of the indictment which involved the conspiracy to commit robbery, as well as the actual robbery on July 14, 2003. The defense submits that the trial court erred in its ruling because the prejudice against the defendant in combining these two separate incidents was "overwhelming" by demonstrating a propensity on Bennett's behalf to engage in criminal conduct. The State argues that count five of the indictment was not unduly prejudicial and would have been admissible at a separate trial of the other counts of the indictment under N.J.R.E. 404(b).

Our Supreme Court has articulated the framework of "general application" used to prevent overuse of evidence of other crimes. State v. Cofield, 127 N.J. 328, 338 (1992). A four-prong analysis must be satisfied prior to admission of such evidence against a criminal defendant. The Cofield Court found that the other-crime evidence: (1) must be relevant to a material issue which is genuinely disputed; (2) must be similar in kind to that which is charged currently and must have occurred reasonably close in time to the events at issue in the criminal trial; (3) must be clear and convincing; and (4) its probative value must not be outweighed by prejudice to the defendant. State v. Bakka, 176 N.J. 533, 547 (2003); State v. Darby, 174 N.J. 509, 519 (2002); State v. Hernandez, 170 N.J. 106, 119 (2001); State v. Covell, 157 N.J. 554, 564 (1999); State v. Marrero, 148 N.J. 469, 483 (1997). See also Biunno, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 404(b) (2007). Both the State and Bennett cite Cofield as the standard, but achieve different results from their application of the facts to the rule.

The State argues that the June 23 incident was relative to issues of intent and common plan or scheme. The State points out that Judge Perfilio found that he could not "imagine any evidence that would be clearer to prove a common scheme, plan, or intent between two co-defendants than the co-defendant testifying that they tried it once, it didn't work, and therefore now they did it better." The defense counters that the evidence merely demonstrates Howell's intent, which is not in dispute. We agree with Judge Perfilio that the record and the attendant circumstances clearly support the finding that this evidence was relevant in proving scheme, plan, and intent.

Similarly, the State argues that there was an overarching plan or scheme -- to get money from Rosen's. The prosecution further submits that there are many similarities between the two incidents. For example, both incidents involved the same store, one of the same victims, the use of force, the same plan to get money, and the use of a weapon. The State also shows that the incidents were only three weeks apart and cites State v. Stevens, 115 N.J. 289, 295-96 (1989), deeming events that occurred more than two years apart admissible. On the other hand, defense counsel argues that there were so many differences between the June 23 and July 14 incidents that the facts failed to satisfy Cofield's second prong. Bennett argues that while Rosen's was the target of both incidents, the "two incidents were factually distinguishable since the first incident did not involve threats, physical assault or demand for money. Furthermore unlike the second incident, no weapon was used."

It is clear that the July 14, 2003, incident involved a weapon, the bat. State v. Harmon, 104 N.J. 189, 210 (1986). Our Supreme Court in Connor v. Powell, 162 N.J. 397, 411-12 (2000), held that some weapons, like firearms, are deadly per se, while "other instruments are deadly only if in the manner used or intended to be used, they are capable of producing death or serious bodily injury." Clearly, bleach can cause serious damage, disfiguration, and blindness when used as a weapon. See, e.g., Payne v. State, 273 Ga. App. 483, 484 (Ga. Ct. App. 2005) ("The bleach burned and discolored [his] face and severely damaged his left eye."); Jurek v. State, 49 Ill. Ct. Cl. 25, 27 (Ill. Ct. Cl. 1996); Taylor v. State, 2003 Tex. App. LEXIS 9166 (Tex. App. 2003). In addition, the record suggests that, barring Patel's phone call, Bennett would have stolen the money during the June 23 incident. Furthermore, the argument that throwing bleach in somebody's face is not an assault is preposterous. The robberies were executed under almost identical situations a mere three weeks apart. The trial court did not abuse its discretion in finding that the escalation in the choice of weapon was simply a refinement of the same common scheme or plan.

In regard to the third prong, defendant argues that only the testimony of Howell substantiates the commonality of the two incidents. The State points out that, in addition to Howell, they offered the testimony of Lee who confirmed that defendant told him of his participation in both incidents. Furthermore, Judge Perfilio correctly pointed out that even uncorroborated testimony of a co-defendant can be clear and convincing.

As to the last prong, defense counsel maintained that the first incident was not relevant to any material issues in dispute in the July 13 robbery and merely demonstrated a propensity to engage in criminal conduct. Judge Perfilio found that the evidence produced by the State was clear and convincing, the two incidents were factually similar, the evidence was related to a material issue in dispute, and the probative value of the evidence outweighed the potential for prejudice.

"The mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Morton, 155 N.J. 383, 453-54 (1998) cert. denied, 532 U.S. 131, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Additionally, certain types of evidence, including evidence of motive or intent, "require a very strong showing of prejudice to justify exclusion." State v. Covell, supra, 157 N.J. at 570. Bennett failed to demonstrate that the evidence would be so prejudicial that it would outweigh the obvious probative value of the evidence. The evidence of the June 23 incident tended to show not only an overarching common scheme or plan, but also indicated motive and intent to rob Rosen's. As discussed above, the factual similarities in these two events, such as location, victim, assailants, and manner of execution, are striking. Because we find that Judge Perfilio did not abuse his discretion in his analysis under Cofield, we affirm his denial of the motion to sever count five.

Our Supreme Court has outlined the respective roles of the trial court and the appellate division with regard to criminal sentences. According to the Court, "a trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989); see also State v. Kruse, 105 N.J. 354, 359-60 (1987); State v. Roth, 95 N.J. 334, 359-60 (1984). In contrast, the appellate court,

does not sit to substitute its judgment for that of the trial court. An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.

[O'Donnell, supra, 117 N.J. at 215.]

"Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience." Id. at 215-16. Given a careful balancing of mitigating and aggravating factors by the trial court, the appellate division should not substitute its judgment for that of the trial court. Id. at 220.

Defendant argues, however, that the nature of the offense cannot be an aggravating factor in every case and should be applied only when the crime "was committed in an especially heinous, cruel or depraved manner." Defendant also argues that his handful of relatively minor criminal offenses do not suggest that the defendant is a risk to commit another offense or that his record is extensive or serious. As a remedy, defendant urges us to modify the sentence. Conversely, the State argues that the sentence is not excessive considering the gravity of the crime and that the trial judge properly considered all aggravating factors and the lack of significant mitigating factors in rendering a decision.

In his sentencing analysis, Judge Perfilio cited the nature of the offense, the risk of future offenses, the extent of defendant's prior record, and the need to deter as aggravating factors. N.J.S.A. 2C:44-1(a)(1), -1(a)(3), -1(a)(6), -1(a)(9). The only mitigating factor was that Bennett was ordered to pay restitution to Brown. N.J.S.A. 2C:44-1(b)(6).

The nature and circumstances of the offense is the most important aggravating and mitigating factor. Roth, supra, 95 N.J. at 368; Hodge, supra, 95 N.J. at 377-79. Judge Perfilio described the robbery as "a brutal, vicious, violent, cruel, inhuman attack on these two innocent people . . . ." The particularly brutal and senseless manner of the robbery is properly considered an aggravating factor under -1(a)(1). State v. Bowens, 108 N.J. 622, 639 (1987); Roth, supra, 95 N.J. at 367; State v. Gallagher, 286 N.J. Super, 1, 20 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996). In addition, the force used to carry out the July 23 robbery was unmistakably excessive. State v. McBride, 211 N.J. Super. 699 (App. Div. 1986). Defendant errs in arguing that these factors are duplicitous of any element of the crimes for which he was convicted.

Judge Perfilio also noted during sentencing that Bennett has an extensive criminal record, including twelve juvenile adjudications and three previous criminal convictions. Judge Perfilio also commented that many of the juvenile adjudications consisted of "the same types of things, attempted robbery, aggravated assault" that Bennett was at the time being sentenced for. Judge Perfilio did not merely consider the existence of Bennett's record, but the length of his criminal and juvenile history and the similarity of the crimes. State v. Thomas, 356 N.J. Super. 299, 309 (App. Div. 2002). Accordingly, Judge Perfilio correctly found aggravating factors (3), (6), and (9).

When these aggravating factors are thoughtfully weighed against the sole mitigating factor, it follows that the trial court did not impose an excessive sentence upon Bennett. Considering the crimes for which Bennett was convicted, the sentence of twenty years does not shock the conscience. The trial court, in fact, appeared to be lenient towards Bennett in imposing a sentence. Although the State requested that the sentences run consecutively, Judge Perfilio honored the mistakenly-entered-into pre-trial memorandum that exposed Bennett to a maximum of twenty years. Apparently, the pre-trial memorandum was the only reason for not sentencing Bennett to a longer period of incarceration. We find that Judge Perfilio did not err in his application of aggravating factors (1), (3), (6), and (9). Furthermore, we find that the sentence was supported by credible evidence and specific justification.

Next, Bennett argues that Judge Perfilio's jury charges were insufficient and the failure of Bennett's counsel to object constituted ineffective counsel. Defendant requests that the appellate court reverse his convictions. The State did not file a brief in opposition to this point. Normally, a defendant must pursue relief on direct appeal "and may not use post-conviction relief to assert a new claim that could have been raised on direct appeal." State v. McQuaid, 147 N.J. 464, 483 (1997). However, our Supreme Court has held that "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction review . . . ." State v. Preciose, 129 N.J. 451, 460 (1992). Ineffective-assistance-of-counsel claims generally involve allegations and evidence that lie outside of the appellate record and, therefore, "[o]ur courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal . . . . Other courts have expressed the same rationale for encouraging defendants to raise ineffective-assistance-of-counsel claims in post-conviction proceedings." Ibid. (internal citations omitted). Therefore, defendant's argument, insofar it claims ineffective assistance of counsel, is dismissed without prejudice. Defendant may raise his ineffective-assistance-of-counsel claim in a petition for post-conviction relief.

The second part of defendant's argument is that the jury should have been charged that the co-defendant's guilty plea should not be used as substantive evidence of defendant's guilt. Defendant points to the court's identification charge in which both Howell and the victims were mentioned as having identified the defendant: "You'll recall these witnesses identified the defendant in Court, [and] Mr. Howell identified him as the person who committed the crime with him. Mr. Lee identified him as the person who told him he committed the crime." Bennett also points out that the court instructed the jury that they could consider "any other factor based on the evidence or lack of evidence in this case which you consider relevant in your determination whether the identifications are reliable." As such, Bennett argues that he was "primarily convicted by the co-defendant's plea and testimony [and that his] counsel was ineffective for not requesting an instruction informing the jury that the guilty plea [of Howell] could not be used as substantive evidence of defendant's guilt."

Our Supreme Court in State v. Hock, 54 N.J. 526 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970), held that:

There was no objection to the portion of the charge of which [defendant] now complains. Therefore the ground of appeal will not be considered unless it qualifies as plain error, that 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).]

However, certain kinds of jury instructions are so crucial to a jury's deliberations on the guilt of a criminal defendant that errors in those instructions are presumed to be reversible. "Erroneous instructions regarding elements of an offense or defense are almost invariably regarded as prejudicial and as poor candidates for rehabilitation under the harmless error philosophy. Put another way, the well-established rule presumes that a trial court's instructional error on a material issue constitutes reversible error." State v. Wickliff, 378 N.J. Super. 328, 337 (App. Div. 2005) (internal quotations omitted). For example, trial courts must charge the jury on the elements of the crime. State v. Vick, 117 N.J. 288, 291 (1989).

Defendant argues, according to State v. Murphy, 376 N.J. Super. 114, 122 (App. Div. 2005), that:

Traditionally, the guilty plea of a co-defendant is inadmissible at the trial of a co-defendant as substantive evidence of the defendant's guilt.

[Murphy, supra, 376 N.J. Super. at 122 (citing State v. Stefanelli, 78 N.J. 418, 430 (1979)).]

We held, however, that "[o]n the other hand, a witness's guilty plea is certainly admissible to affect his credibility as a witness." Ibid. Judge Perfilio's charge instructed the jury that:

Mr. Howell was testifying on behalf of the State, he was a defendant in this case before he admitted his guilt and testified on behalf of the State.

The law requires that the testimony of such a witness be given careful scrutiny. In weighing this testimony, therefore, you may consider whether he has a special interest in the outcome of the case, and whether his testimony was influenced by the hope, or expectation of a favorable treatment, or a reward, or by feelings of revenge or reprisal.

Judge Perfilio's instructions satisfy the Murphy requirement by permitting the jury to weigh Howell's credibility based on his previous conviction.

Furthermore, we held in Murphy, "To be sure, the Court has not directed that the limiting instruction must also state that the jury may not consider the witness's guilty plea as substantive evidence of defendant's guilt." Murphy, supra, 376 N.J. Super. at 122 (emphasis added). In Murphy, we conducted a fact-sensitive analysis and determined that, based on the unique circumstances of that case, such a limiting instruction was necessary. In Murphy, the trial judge "instructed the jury that a guilty plea will not be accepted by a judge unless the judge is satisfied that the witness was guilty of the charge to which he or she pleaded guilty . . . ." Ibid. In Murphy, we were concerned specifically with the trial judge enhancing or bolstering the credibility of the witnesses who testified about their guilty pleas. Id. at 123 (citing Stefanelli, supra, 78 N.J. at 435). Unlike in Murphy, however, the trial court here did nothing to bolster the credibility of the co-defendant. Id. at 122-23.

Therefore, the limiting instruction requested by Bennett was not necessary and we find no plain error in Judge Perfilio's charge. See R. 2:10-2.

Affirmed.

Patel later died in an unrelated automobile accident in India.

(continued)

(continued)

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A-3852-05T43852-05T4

November 5, 2007