STATE OF NEW JERSEY v. REGINALD HARVEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5320-04T45320-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

REGINALD HARVEY,

Defendant-Appellant.

________________________________________________________________

 

Submitted April 25, 2007 - Decided June 28, 2007

Before Judges Wefing, Parker and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-09-1758.

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

Stuart Rabner, Attorney General of New Jersey, attorney for respondent (Linda K. Danielson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Reginald Harvey appeals from a judgment of conviction entered on October 29, 2004 after a jury found him guilty of first degree robbery, N.J.S.A. 2C:15-1; second degree conspiracy, N.J.S.A. 2C:5-2; fourth degree assault with a firearm, N.J.S.A. 2C:12-1b(4); second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and third degree possession of a handgun, N.J.S.A. 2C:39-5b. Defendant was sentenced to an aggregate term of ten years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We reverse and remand for a new trial.

The facts giving rise to these charges are as follows. On May 18, 2003, at about 2:30 p.m., two individuals - one later identified as defendant - went to BJ's Market in Pleasantville and asked for a certain brand of cigar. The store clerk, Ani Shahriyar, recognized defendant as a regular customer in the store. When Shahriyar asked defendant for age identification, the second individual pointed a black handgun at Shahriyar and told him to give them the money. Defendant took the money from the cash register and both individuals ran out of the store.

Shahriyar locked the store and called the police by activating a silent alarm button. He advised the police that he could identify defendant as a customer of the store. On May 22, 2003, however, Shahriyar saw defendant outside of BJ's and called the police. Detectives Mark Porter and Sergeant Jose Ruiz responded. Defendant was picked up and transported to headquarters. After defendant's father gave permission for him to be questioned, defendant claimed that he knew nothing about the robbery. He was released and the investigation continued.

Shahriyar gave a taped statement and, from photos, identified Franz Boyd as the individual who pointed the gun at him during the robbery and defendant as the other person involved.

At trial, defendant's mother testified that he must have been at school that day because he was on probation and wearing an ankle bracelet, and the school security officers "probably" had called to inform her that her son was out of dress code that day. In rebuttal, however, Atlantic County Corrections Officer Robin Warker testified that defendant had been released from a juvenile detention diversion program involving a monitoring ankle bracelet on January 10, 2003 and was not in the program in May 2003 when the robbery occurred.

In this appeal, defendant argues:

POINT ONE

REVERSAL IS REQUIRED AS A RESULT OF THE TRIAL COURT'S FAILURE TO SUA SPONTE REOPEN THE CASE OR PROPERLY CHARGE THE JURY AFTER THE JURY DISCOVERED THE PHOTO ARRAY CONTAINED A PICTURE TAKEN ONE MONTH AFTER IT WAS ALLEGEDLY SHOWN TO STORE CLERK SHAHRIYAR.

POINT TWO

THE PROSECUTOR COMMITTED SEVERAL ACTS OF MISCONDUCT DURING HIS OPENING AND CLOSING STATEMENTS (Not Raised Below).

A) The Prosecutor Improperly Appealed to the Jury's Emotions.

B) Prejudicial Error Occurred When The Prosecutor Replayed Videotaped Trial Testimony During Summation.

C) The Prosecutor Argued In Such A Way As To Diminish His Burden Of Proof.

POINT THREE

THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE AN INSTRUCTION PURSUANT TO STATE V. BIELKIEWICZ, WHICH DEPRIVED THE JURY OF THE OPPORTUNITY TO CONSIDER THE LESSER-INCLUDED OFFENSE OF SECOND-DEGREE ROBBERY (Not Raised Below).

POINT FOUR

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT INCORRECTLY EQUATED CONSPIRACY WITH ACCOMPLICE LIABILITY IN SUCH A WAY AS TO CONFUSE THE JURY (Not Raised Below).

POINT FIVE

THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED INTO THE CONVICTION FOR ROBBERY (Not Raised Below).

POINT SIX

HARVEY'S SENTENCE IS MANIFESTLY EXCESSIVE.

None of the points argued by defendant in this appeal were raised in the trial court and are, therefore, subject to the plain error rule. R. 2:10-2. After careful consideration of the record, we find that defendant's arguments do not rise to the level of plain error to warrant reversal, except for the argument addressing the conspiracy/accomplice jury charges.

Defendant contends that the trial court erred by equating conspiracy with accomplice liability in its jury instructions. We agree. "When evaluating the propriety of a jury charge, an appellate court 'does not excise and examine in isolation those statements alleged to be obscure or ambiguous, but looks to the charge as a whole.'" State v. Concepcion, 111 N.J. 373, 376 (1988) (quoting State v. Freeman, 64 N.J. 66, 69 (1973)).

Here, the challenged portion of the instruction read to the jury is as follows:

A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of the offense. A person is an accomplice of another person in the commission of an offense if with the purpose of promoting or facilitating the commission of the offense, he solicits such other person to commit it and/or aids or agrees or attempts to aid such other person in planning or committing it.

Now, you'll notice that in those last words, I gave you the identical words of conspiracy. So, what this is telling you is that when someone is a co-conspirator with another, that they in that way satisfy the requirement of accomplice liability. So, someone who conspires with another to commit an offense is, under the law, also an accomplice of that person in the commission of the offense.

[Emphasis added.]

This charge was plain error. R. 2:10-2. The trial court should not have equated conspiracy with accomplice liability. State v. Bridges, 133 N.J. 447, 467 (1993).

"[C]onspirator liability is circumscribed by the requirement of a close causal connection between the conspiracy and the substantive crime, that standard concededly is less strict than that defining accomplice accountability." Id. at 466; State v. Bielkiewicz, 267 N.J. Super. 520, 530 (App. Div. 1993). Informing the jury that a person who conspires to commit a crime is automatically an accomplice constitutes error because defendant is entitled to a clear and accurate jury instruction. Concepcion, supra, 111 N.J. at 379. In our view, this error is capable of producing an unjust result. See Ibid. We, therefore, reverse the defendant's conviction and remand for a new trial.

We have carefully considered all of defendant's remaining arguments in light of the applicable law and we are satisfied that they lack sufficient merit to warrant consideration in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments with respect to defendant's first point addressing the photo array.

The trial court denied defendant's motion for a Wade hearing to establish admissibility of evidence relating to a witness's identification of defendant. During the trial, Detective Porter testified that he showed the store clerk, Shahriyar, a photo array on May 22, 2003, containing a photo of defendant. Porter testified that Shahriyar identified defendant from the array, which was then admitted into evidence.

During deliberations, the jury sent a note asking why a photo dated June 18, 2003 was included in the array purportedly shown to the store clerk on May 22, 2003. When the court received the question, it asked counsel for suggestions as to how to respond. Defense counsel said:

I don't [have a suggestion] judge. It's a factual question. It's unusual that the court would get a question like that from jurors. It's just I don't know how you answer it. I mean, it's not something that you can re-instruct them on other than to instruct them that they should consider all facts in the case and . . . attribute what weight to it they deem appropriate.

The trial court indicated it could not reopen testimony after deliberations had begun and simply told the jury "there will be no answer to your question." Defendant now argues that the court should have reopened testimony on the issue sua sponte. The State responds that the date of one photo in the array was irrelevant to defendant's identification because Shahriyar had identified defendant when defendant was standing in front of the market a few days after the robbery, Shahriyar testified that he knew defendant as a customer, and defendant's face was clearly visible during the robbery.

In our view, the trial court erred in failing to reopen testimony or, alternatively giving a curative instruction to the effect that the jurors should consider all of the evidence and give it the weight it deems appropriate. A trial court has the authority to reopen testimony during jury deliberations "when the ends of justice will be served." State v. Wolf, 44 N.J. 176, 191 (1965). Confusion over a photo array goes to the credibility of the witness who presented the array, in this case Detective Porter.

Here, however, Shahriyar's identification was not dependent on the photo array. He testified that he knew defendant as a customer, defendant did not wear any mask or covering on his face and the clerk identified defendant a few days after the robbery when defendant appeared in front of the market. Under these circumstances, the trial court's error in failing to reopen testimony on the photo array or give a curative instruction was harmless. R. 2:10-2.

While we find this error harmless under the circumstances of this trial, on re-trial, the court should be mindful of the Supreme Court's recent decision in State v. Romero, __ N.J. ___, __ (2007) (slip op. at 17-39), regarding jury charges relating to eyewitness identification.

 
Reversed and remanded for a new trial.

The judgment of conviction incorrectly states that defendant was convicted of first degree conspiracy. Pursuant to N.J.S.A. 2C:5-4, conspiracy to commit a first degree offense is a crime of the second degree.

U.S. v. Wade, 388 U.S. 218, 89 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

(continued)

(continued)

9

A-5320-04T4

June 28, 2007