STATE OF NEW JERSEY v. RICKY DARNELL BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5321-05T45321-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICKY DARNELL BROWN,

Defendant-Appellant.

__________________________________

 

Submitted June 4, 2007 - Decided June 28, 2007

Before Judges Lintner, Seltzer and C.L. Miniman.

On appeal from the Superior Court of

New Jersey, Law Division, Hudson County,

I-04-06-0903.

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

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Nicole D. DePalma, Assistant Prosecutor, on the brief).

PER CURIAM

On November 17, 2005, following trial, a jury found defendant, Ricky Darnell Brown, guilty of third-degree aggravated assault against Clinton Jones, N.J.S.A. 2C:12-1b(2) (Count One); second-degree armed robbery of Long Tao Lin, N.J.S.A. 2C:15-1 (Count Six); and the lesser-included offense of aggravated assault of Lin, N.J.S.A. 2C:12-1b(1) (Count Seven). Defendant was also convicted of conspiracy to commit robbery against Lin, which was added as Count Ten by amendment during trial. Defendant was found not guilty of unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d (Count Two) and possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Three).

Defendant was sentenced on February 3, 2006. The judge imposed a five-year term with a two-and-a-half-year period of parole ineligibility on the Count One aggravated assault conviction. A consecutive ten-year sentence with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, was imposed on the Count Six armed robbery conviction and a concurrent ten-year sentence was imposed on the added Count Ten conspiracy to commit robbery conviction. The Count Seven aggravated assault conviction was merged with the Count Six robbery conviction. Defendant appeals and we affirm the judgment of conviction in all respects, but remand to correct the sentence to reflect the merger of the Count Six robbery and Count Ten conspiracy convictions.

We restate the facts relevant to this appeal. On January 19, 2004, Clinton Jones resided in apartment number three on the second floor of a six-unit apartment building located at 150 Saint Paul Avenue in Jersey City. At the same time, defendant and codefendant Fuller resided in apartment number two on the first floor. Some time between 7:00 and 8:00 p.m., Jones' roommate let defendant into the apartment. Defendant asked Jones for a Chinese food menu. After giving defendant the menu, defendant asked Jones for his cell phone. When Jones refused to give defendant his cell phone, defendant became aggressive. According to Jones, defendant

started to make a threat to trash my room and then he proceeded to. Then he pulled out a knife and then he started throwing my CD's at the wall and said if I came any closer to protect my property he would slice me. And I did protect my property and he cut me on my arm.

Using a five-inch "foldout knife," defendant cut Jones' right arm and his forehead. Defendant then "pulled a gun" from his waistband, pointed it at Jones' head, and threatened to shoot. Jones thought the gun was real. Defendant then left the apartment.

Jones did not seek medical attention. Instead, he went to the bathroom to wash his cuts. An hour or two later, defendant returned to Jones' apartment, entered through the opened door, and again asked for the cell phone. Jones, who felt intimidated and fearful, gave the phone to defendant. Defendant returned the phone approximately fifteen minutes later. Jones could see from the phone's memory that defendant had made a call.

Lin worked as a food deliveryman for the Great Wall Restaurant. While making a delivery at 146 Hopkins Street at approximately 10:30 p.m., he was confronted by three men. One of the individuals wore a black jacket, another wore a yellow jacket, and the third wore an army camouflage jacket. Two of the men were masked. The man in the yellow jacket pointed a gun at Lin's face. Lin gave the man the food. When Lin attempted to use his cell phone to call the police, the man in the yellow jacket smashed Lin's face with the gun. The three men pressed Lin to the ground, kicked and beat him, and took his wallet. Lin was hit more than ten times in his back and waist. At the time, Lin thought the gun looked fake.

The three men then ran in different directions. Lin first testified that he chased the man in the yellow jacket to "150 St. Paul's Avenue" where he encountered three persons, one who looked "Indian" and two who looked "Hispanic." He asked the men to call the police. He did not stop chasing until he got to 170 St. Paul's Avenue where the man with the gun "hit across . . . some fences and ran away." Lin returned to Hopkins Street where he met and gave a description of the three men to the police. Lin identified pictures of his injuries and testified about his injuries to his face and waist. According to Lin, the men robbed him of $450, $100 of which was his own money. They also took his driver's license, work permit, and cell phone.

Between 10:30 and 10:45 p.m., Sergeant Wally Wolfe and a team of plainclothes officers heard the report of an armed robbery in progress while they were conducting a nearby narcotics surveillance. Sergeant Jack Redman, Officer Paul Matos, Officer Jay Fiore, and Officer Sean Cavanaugh were working with Wolfe. Wolfe directed his men to "go into the perimeter." Wolfe went to the scene where he spoke with Lin who described the clothing the men were wearing and indicated that he gave chase after which the men entered the doorway at 150 St. Paul's Avenue. According to Wolfe, Lin told him one of the men wore a black nylon jacket, one a camouflage jacket, and the third a yellow nylon jacket. At trial, Lin answered, "No" when asked whether he remembered telling the police that he saw the men run into "150 St. Paul Street."

As Wolfe and his squad entered the apartment building at 150 St. Paul's Avenue, they found money on the floor in the hallway. The "money trail" led them to an open door of defendant's and Fuller's apartment. It continued through the apartment into a bedroom. The apartment was unoccupied. In the bedroom, Wolfe found a black nylon jacket on the bed. The jacket matched Lin's description of a jacket worn by one of the perpetrators. It was cold to the touch, causing Wolfe to believe that "this might be the coat" since it was January and "in the teens" outside. Redman found an open window and saw footprints in the "old snow." He believed that "probably someone had entered and taken off out the window."

"Protruding from the pocket" of the black nylon jacket was money, a wallet "with a picture ID of an Asian male," a New York State driver's license, keys, and a broken cell phone. A yellow jacket was found hanging on a hook in the bedroom closet. While the police were searching the apartment, a woman entered and identified herself as Mrs. Bonner, a supervisor for Volunteers of America working with the Division of Youth and Family Services. She told Wolfe that apartment number two was "a DYFS apartment" assigned to Fuller.

Officer Redman went to the second floor where he knocked on the door of apartment number three. A "young . . . 16-year-old female" opened the door. Redman asked the girl if the residents of the first floor apartment were there. After hearing her response, he "immediately entered the apartment" and asked for back-up.

Meanwhile, Jones was "just soaking" in the bathroom when he heard "a commotion coming up the stairs and then people barged in [his] door." Jones' roommate had left the door unlocked. When Jones looked out, he saw defendant and Fuller removing the air conditioner. Jones went back into the bathroom. About ten minutes later, Jones heard police sirens. Ten to fifteen minutes after that, Jones heard the police knock on the back door located next to the bathroom. He opened the door and stepped into the hall. According to Jones, defendant, Fuller, Jones' roommate, "the girl from across the hallway" and "the other boy" were in the apartment.

As Redman entered, he found four men sitting in the front room and asked for the residents of the first floor by name. One male identified himself as Fuller, stated that he lived on the first floor and that his black jacket was on the bed. Defendant was also there. The men were patted down to check for weapons and then "secured" to see if the victim could identify them. Cole was found hiding under a bed, wearing a camouflage jacket with "fresh, wet blood all over his coat."

After getting Fuller's name and finding Cole under the bed with blood on his jacket, Wolfe believed he may have had the right people. He sat everybody down and read them their Miranda rights. According to Redman, Jones "appeared to be scared out of his mind" and directed him to the fire escape. Redman moved a metal-like plant holder out from the window and found a bag of Chinese food sitting on the fire escape. The food was "still warm" and the bill was stapled to the bag. $182 in cash and a stick were found under the couch in the living room.

Redman described his interview with Jones:

[He] was not very easy to speak with. He was really scared out of his mind and the fact that I -- that the evidence was on the fire escape, it took him quite a while to give up that information alone. It was imperative to him that he speak to his father first, before he'd cooperate fully with the police. I was the officer on the scene who spoke with him, I think, the most. And it was just, you know, like pulling teeth trying to get information out of him.

Redman did not notice any visible injuries on Jones at the time and Jones did not mention that he had been assaulted earlier that night.

Jones testified that he told the officers that he thought that defendant and Fuller "hid something" but he was upset and "was not in the right state of mind" to give the police information about what had happened that night. On cross-examination, Jones claimed that he did not tell the police that defendant was "dangerous" because "[he] was hysterical at the moment. [He] tried to pull people aside, but . . . just couldn't say anything that would ma[k]e any sense because [he] just was freaking out." Jones testified that there were about thirty police officers in the building but he did not tell any of them what happened because he was too upset and they were busy looking for a gun.

Lin was brought to the apartment. He identified Fuller as the man in the yellow jacket who hit him with the gun. Lin was unable to positively identify defendant. Fuller and Cole were placed under arrest. Defendant was not arrested at the time.

At trial, Lin identified Fuller as the one wearing the black jacket and defendant as the person in the yellow jacket holding the gun. Cole's camouflage jacket had bloodstains, which were identified as Lin's blood through DNA analysis. Lin agreed on cross-examination that his recollection was "[m]uch less stronger" at trial than it had been at the time of his original statement.

On January 20, 2004, Officer Victor Cook was dispatched to the corner of Hopkins and Perry Streets on a report of a weapon left in a snow bank. Cook found the gun and retained it for evidence. On January 20, Jones gave Officer Charles Sutaris a statement when he learned that defendant had not been arrested. Sutaris took photographs of Jones' injuries. At trial, Jones and Sutaris identified those pictures, as well as Jones' cell phone showing the phone number of the Chinese restaurant that defendant had called, and the gun.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS.

A. FACTUAL INTRODUCTION.

B. THE COMMUNITY CARETAKING DOCTRINE WAS INAPPLICABLE TO THE PRESENT CASE.

C. THE CIRCUMSTANCES OF THE PRESENT CASE DID NOT QUALIFY AS HOT PURSUIT.

D. THE CONDUCT OF THE POLICE COULD NOT BE JUSTIFIED UNDER THE PLAIN VIEW DOCTRINE.

POINT II

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A STATE'S WITNESS CONNECTING THE DEFENDANT WITH OTHER CRIMINAL CONDUCT.

POINT III

THE TRIAL COURT ERRED BY INSTRUCTING THE JURY NOT ONLY REGARDING ROBBERY EMBODIED IN COUNT VI, BUT ALSO CONSPIRACY TO COMMIT ROBBERY, THEREBY PERMITTING THE JURY TO FIND THE DEFENDANT GUILTY OF AN OFFENSE NOT SPECIFICALLY SET FORTH IN THE INDICTMENT.

POINT IV

THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF COUNT I WAS INCONSISTENT, ILLOGICAL, AND THE RESULT OF COMPROMISE. (NOT RAISED BELOW).

POINT V

THE TRIAL COURT ERRED BY FAILING TO MERGE THE CONSPIRACY TO COMMIT ROBBERY CONVICTION INTO THE ROBBERY CONVICTION, BOTH CHARGES ARISING OUT OF COUNT VI. (PARTIALLY RAISED BELOW).

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We address defendant's contentions seriatim. Defendant moved to suppress the evidence, arguing that the warrantless search under the circumstances was invalid and the police did not have cause to search the apartment "merely because they saw money lying on the ground." The trial judge found that "on the date in question, a delivery person was attacked and robbed at 142 Hopkins Avenue" and that the victim observed the three persons who attacked him enter a building on St. Paul Avenue. The police were called and "immediately responded." The police "entered the building legally, and while they were entering the building, saw a door ajar." The judge then ruled:

Knowing that within a short period of time, three armed actors had just committed an armed robbery a short distance away and went into this building, to see a door open in a . . . three unit building and then seeing cash strewn on the floor is more than enough for any police officer to indicate that somebody could be in trouble or these actors could be in that apartment, and their entry into the apartment, and following the money trail was part of their either hot pursuit or community caretaking. Either one would have been appropriate at that time. And upon seeing jackets on the bed was a reasonable action to feel their contents to see if, in fact, any weapons were in there because it was a cold evening, and, obviously, people had to be wearing jackets.

So the searching of the pockets of coats . . . for potential weapons was reasonable and that the retrieval of the wallet and property of the victim was basically reasonable under the plain view doctrine. Once they were looking . . . for weapons and they felt these items, that the police officers then, not seeing the three actors, who probably were in the building yet, were, as far as this Court can find, admitted into the other apartment by the occupant of that apartment, with permission, and that any items that they seized at that time which were clearly evidences [sic] of the crime of the robbery that had taken place . . . later, was within their power to do at that time, under plain view and hot pursuit doctrines and I am going to deny the defendant's motion to suppress the evidence.

The judge found Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), which explains the hot pursuit doctrine, controlling.

We first address the validity of warrantless searches under the exigent circumstance and community care taking exceptions. Both the Fourth Amendment and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures by requiring warrants issued on probable cause unless the search falls within one of the recognized exceptions to the warrant requirement. State v. Cassidy, 179 N.J. 150, 159-60 (2004); State v. Dangerfield, 171 N.J. 446, 455 (2002). Warrantless searches of a person's home are "subjected to particularly careful scrutiny," State v. Bolte, 115 N.J. 579, 583, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989), because "'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is direct[ed].'" State v. Hutchins, 116 N.J. 457, 463 (1989) (quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972)).

Moreover, any search or arrest "must be reasonable, measured in objective terms by examining the totality of the circumstances." State v. Ravotto, 169 N.J. 227, 235 (2001). The burden is on the State to prove the exceptional nature of the circumstances that exempts it from the warrant requirement. State v. Moore, 181 N.J. 40, 44-45 (2004); Ravotto, supra, 169 N.J. at 236.

"The predominant exception" to the warrant requirement is "'exigent circumstances.'" Cassidy, supra, 179 N.J. at 160 (quoting Hutchins, supra, 116 N.J. at 463). Probable cause, when combined with exigent circumstances, "will excuse a police officer's failure to have secured a written warrant prior to a search for criminal wrongdoing." Ibid. When there is probable cause to believe a defendant has committed a crime and eluded apprehension by the police by retreating into his home, there is authority for the police, who are in immediate or continuous (i.e., "hot") pursuit, to follow the fleeing felon. See, e.g., United States v. Santana, 427 U.S. 38, 42-43 & n.3, 96 S. Ct. 2406, 2409-10 & n.3, 49 L. Ed. 2d 300, 304-05 & n.3 (1976); Warden, supra, 387 U.S. at 298-99, 87 S. Ct. at 1645-46, 18 L. Ed. 2d at 787; Bolte, supra, 115 N.J. at 587-92.

The doctrine does not fit into "neatly defined contours." Cassidy, supra, 179 N.J. at 160. Exigent circumstances have been found to exist where they "preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both." State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif. denied, 66 N.J. 327 (1974). The following factors should be considered when determining whether to validate a warrantless search under exigent circumstances:

[T]he degree of urgency and the amount of time necessary to obtain a warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect was armed or dangerous; and the strength or weakness of the underlying probable cause determination.

[State v. DeLuca, 168 N.J. 626, 632-33, (2001).]

Courts have also permitted warrantless searches of homes for emergency aid under the community caretaking doctrine. See State v. Frankel, 341 N.J. Super. 594, 601 (App. Div. 2001), aff'd, 179 N.J. 586, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004). "Where there is a reasonable belief that someone is in need of immediate aid, the police may enter premises and investigate without a warrant to the extent necessary to quell that fear, in light of the nature of the perceived emergency. Any contraband or evidence of a crime observed in plain view may be seized without regard to probable cause." Ibid.

"In a nutshell, [the community caretaking] exception applies to police conduct that is 'totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'" State v. Stott, 171 N.J. 343, 361 (2002) (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 715 (1973)). "For example, the police do not need a warrant 'to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person.'" Ibid. (quoting State v. Garbin, 325 N.J. Super. 521, 526 (App. Div. 1999), certif. denied, 164 N.J. 560 (2000)). The State must satisfy the following three-prong test:

"(1) the existence of an emergency as viewed objectively (2) a search not motivated by a desire to find evidence and (3) a nexus between the search and the emergency." State v. Scott, 231 N.J. Super. 258, 275 (App. Div. 1989), (Ashbey, J.A.D., concurring and dissenting), rev'd on dissent, 118 N.J. 406 (1990).

Defendant argues that Lin's testimony that he believed the gun was fake negated any emergent circumstances justifying a warrantless search under the community caretaking doctrine. He also argues that, because the police did not actually see the perpetrators enter the apartment building, the search did not have the earmarks of a hot pursuit under the exigent circumstances exception. Additionally, defendant maintains that there was sufficient time to obtain a warrant. We disagree.

Stated simply, exigent circumstances existed. The police, while in the general area of the crime, received a report that an armed robbery was in progress and within a short time obtained information that the perpetrators had been chased into a specific apartment building. Upon arriving and entering the building, they saw the first floor apartment door ajar with money strewn in the hallway floor through the open doorway. The severity of the reported offense combined with the existence of money on the floor provided probable cause that a crime had just been committed, together with the necessary degree of urgency, including a reasonable belief that the suspect would be lost or the evidence removed from the scene if not pursued. The report of an armed robbery also provided a reasonable basis for the police to believe that the suspects were armed and dangerous, thus supplying additional criteria for a warrantless search under exigent circumstances, as well as justifying entry into the apartment to protect its inhabitants from danger under the community caretaking doctrine.

Defendant next asserts that the State did not satisfy the plain view exception. Under the plain view doctrine, "a police officer who is 'lawfully . . . in the viewing area' may seize property that the officer has probable cause to believe is contraband or evidence of a crime." State v. Pineiro, 369 N.J. Super. 65, 72 (App. Div.) (quoting State v. Johnson, 171 N.J. 192, 206-08 (2002)), certif. denied, 181 N.J. 285 (2004). "The rationale of the doctrine is that 'a police officer lawfully in the viewing area' should not be required to 'close his eyes to suspicious evidence in plain view.'" Ibid. (quoting State v. Bruzzese, 94 N.J. 210, 237 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).

A three-prong test must be satisfied under the plain view exception. First, the police officer must be lawfully in the viewing area. Johnson, supra, 171 N.J. at 206. Second, the officer must discover the evidence inadvertently; that is, he must not know in advance where the evidence was located or intend beforehand to seize it. Ibid. Third, it has to be "immediately apparent" to the officer that the items in plain view are evidence of a crime, contraband, or otherwise subject to seizure. Id. at 207. To satisfy the third prong there must be probable cause to associate the evidence with criminal activity, such that a person of reasonable caution would believe the items may be contraband, stolen property, or evidence of a crime. Id. at 207 (citing Bruzzese, supra, 94 N.J. at 236-38). Defendant claims on appeal that the State failed to satisfy the third prong.

Although defendant concedes that the police had the right to enter the hallway of the apartment building where they observed money on the floor leading to the open apartment door, he contends that "it could not fairly be concluded that . . . the police had probable cause to associate the money observed in plain view as constitut[ing] contraband or evidence of a crime." Defendant's contention is devoid of merit. The evidence established that after the armed robbery the perpetrators were chased to the apartment building. It was reasonable for the police to believe, under the circumstances, that the perpetrators had dropped a portion of the cash proceeds of their criminal endeavor while being chased and failed to pick it up for fear that they might be caught.

During Jones' testimony, when asked why he told defendant to shoot, Jones responded: "[b]ecause he's been intimidating me and this was not the first incident where he assaulted me." Defense counsel immediately objected and the judge advised that he would instruct the jury to disregard the answer. The judge instructed the jury that "there is no allegation in the charges present for your consideration about any alleged previous threats or conduct or anything of that nature, so I'd ask you to disregard anything about any prior incidents." Defense counsel did not believe the cautionary instruction was sufficient. However, defense counsel did not request a mistrial or a stronger instruction. Defendant now contends that, notwithstanding the curative instruction, he was denied his right to a fair trial, warranting reversal of the aggravated assault conviction.

We conclude that the judge's instructions were adequate to ameliorate any significant prejudice. See State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). There is no reason to believe that the jury was unwilling or unable to follow the curative instruction as given. See State v. Manley, 54 N.J. 259, 270 (1969); see also State v. Reddish, 181 N.J. 553, 644 (2004); State v. Papasavvas, 163 N.J. 565, 614 (2000). The instruction was given immediately after the comment was made. We conclude that under these circumstances the State's remarks did not deprive defendant of a fair trial.

The parties conducted a very brief charge conference after the State rested and the defense indicated that it did not intend to call any witnesses. During the conference, the prosecutor asked, "[w]hat about the conspiracy charge that the state also requested?" The judge asked, "[w]hich count is that?" The prosecutor responded, "[i]n the robbery count as well." The judge indicated that he would "charge conspiracy and accomplice" under Count Six (armed robbery). The defense made no objection to including the conspiracy charge at that time.

After the jury was charged, defense counsel objected to the judge's instructions on conspiracy because "there is nothing to put [defendant] on notice that there would be a conspiracy charge at a certain point." The trial judge did not instruct the jury to disregard the conspiracy charge or otherwise modify the charge or verdict sheets. There is nothing in the record explaining the judge's decision to leave the conspiracy charge intact. Defendant now contends that the judge erred in charging the jury on conspiracy to commit robbery because it was not included in the grand jury's indictment.

The purposes of an indictment are: (1) to provide adequate notice so that the accused can prepare his or her defense; (2) to be sufficiently specific for the accused to avoid a subsequent prosecution for the same offense; and (3) to be sufficiently specific to preclude the trial jury's substitution of an offense that the grand jury did not in fact consider or charge. State v. LeFurge, 101 N.J. 404, 415 (1986); State v. Mello, 297 N.J. Super. 452, 462 (App. Div. 1997). An indictment must allege the essential elements of the crime charged. State v. M.L., 253 N.J. Super. 13, 19 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992).

Conspiracy to commit a crime is an included offense of the crime charged. N.J.S.A. 2C:1-8d(2). "The legislative intent, as expressed in N.J.S.A. 2C:1-8d(2), is to permit a jury to convict for conspiracy as an included offense even though the grand jury did not allege the existence of a conspiracy in its indictment." LeFurge, supra, 101 N.J. at 414. However, according to N.J.S.A. 2C:1-8e, "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense."

In this case, the jury was instructed that defendant was charged with conspiracy to commit robbery "[a]s part and parcel of the sixth count," armed robbery of Lin. The Court in LeFurge upheld the constitutionality of N.J.S.A. 2C:1-8d(2), which allows for conviction of conspiracy to commit the substantive offense contained in the indictment, even though a conspiracy count was not charged in the indictment, so long as "the trial court may reasonably infer that the elements of the crime of conspiracy were fairly implicated in the evidence that was considered by the grand jury in its deliberations." LeFurge, supra, 101 N.J. at 423-24. As noted in LeFurge, N.J.S.A. 2C:1-8d(2) "[o]n its face . . . provides adequate notice to all defendants that they may be required to defend against the charge of conspiracy to commit the substantive offenses for which they have been indicted." Id. at 415-16.

Although the indictment does not expressly allege conspiracy, the sixth count accused all three defendants "in the course of committing a theft" of inflicting bodily injury on Lin. The fact that defendant and his two codefendants were accused of assaulting and robbing Lin of money and Chinese food "compels the conclusion that the grand jury concluded the defendants acted in concert." Id. at 416. The judge's decision to charge conspiracy as part of the sixth count was consistent with the holding in LeFurge. Indeed, "it is difficult to conceive that defendant was in any way surprised or prejudiced by the trial court's charge of conspiracy to commit [robbery] as an included offense." Id. at 416-17. Defendant's contentions to the contrary lack merit.

Defendant next asserts that the jury's conviction of him on Count One (aggravated assault of Jones with a deadly weapon, a knife) and acquittal on the two weapons counts is "inconsistent, illogical and the result of compromise." Defendant asserts that the jury had to reject Jones' testimony that defendant assaulted Jones with a knife in order to acquit defendant of the weapons charges.

In cases where the reason for the inconsistency is not clear, "[i]nconsistent verdicts are permitted as long as there is sufficient evidence to permit a rational factfinder to find a defendant's guilt beyond a reasonable doubt on the charges on which the defendant was convicted." State v. Ellis, 299 N.J. Super. 440, 455-56 (App. Div.), certif. denied, 151 N.J. 74 (1997). Where the evidence is sufficient to convict and the defendant has been acquitted of a crime that precludes the finding of an element of the crime of which he was convicted, the verdict will not be sustained. State v. Grey, 147 N.J. 4, 16-17 (1996). Where, however, the reason for the inconsistency cannot be determined, the verdict should be sustained. Id. at 11-12 (citing United States v. Powell, 469 U.S. 57, 65, 105 S. Ct. 471, 476-77, 83 L. Ed. 2d 461, 468-69 (1984); Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed. 356, 358-59 (1932)). Inconsistency in verdicts does not necessarily signify "that the jury was unconvinced of the defendant's guilt." Grey, supra, 147 N.J. at 9 (citing Dunn, supra, 284 U.S. at 393, 52 S. Ct. at 190, 76 L. Ed. at 359). Rather, an inconsistent "verdict might indicate only an exercise of leniency or nullification." Ibid. While illogical or inconsistent verdicts are not tolerated in civil trials, they are upheld in criminal cases so long as there is sufficient evidence to support the conviction beyond a reasonable doubt. Id. at 10.

The jury's decision to convict defendant of aggravated assault with a deadly weapon is supported by the record. Through Jones' testimony, the State established that defendant assaulted and threatened Jones in order to get Jones' cell phone. During deliberations, the jury asked whether there was "any evidence of the knife." The court responded that "[n]o knife was recovered" but "[t]estimony had been introduced concerning the existence of the knife." In finding defendant not guilty of the two charges related to the knife, the jury could have been persuaded by the fact that no knife had been found or produced at trial. However, the jury may have found Jones' testimony concerning defendant's threat credible. We need not speculate further on why the jury acquitted defendant on the two weapons charges involving the knife. There was sufficient evidence to convict defendant of aggravated assault.

Defendant next argues and the State concedes that the judge erred in failing to merge the conspiracy to commit robbery with the robbery conviction. We agree and remand to correct the judgment to reflect the appropriate merger.

Defendant also asserts that the sentence imposed was excessive. In applying aggravating factor number one, N.J.S.A. 2C:44-1a(1), the judge found that "[i]t is quite clear from all the testimony that this defendant was the mastermind of the robbery"; defendant was involved in both incidents; and defendant relied on Jones' fear or his "control" over Jones to set up the entire robbery. Applying aggravating factor number two, N.J.S.A. 2C:44-1a(2), the judge found that Jones "was obviously an extremely emotional, vulnerable person" and was "very fearful" and "easily intimidated." The judge also found that defendant "used [his] size and personality to over power [sic] him [and] to frighten" Jones. Finding aggravating factor number three, N.J.S.A. 2C:44-1a(3), the judge reasoned that defendant was "more than likely going to commit another offense based upon [his] attitude, [his] role in this play, [his] using other people to get what [he] want[s] done." Finally, the judge concluded that aggravating factor number nine, N.J.S.A. 2C:44-1a(9), the need to deter, was "obviously present."

The judgment of conviction does not include any mitigating factors. However, at sentencing, the judge mentioned that although defendant argued that he had no prior involvement with the criminal justice system he had two prior juvenile confrontations, thus "overcom[ing] the [m]itigating [f]actor of no prior adult convictions." He also said that the four aggravating factors "outweigh[ed] the [m]itigating [f]actors of youth and no prior criminal adult record." The judge found no mitigating factors as enunciated in N.J.S.A. 2C:44-1b. Defendant argues that the judge erred in applying the aggravating factors and overlooking mitigating factors. After a full consideration of defendant's contention and supporting argument, we are satisfied that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. 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, 363-66 (1984).

Lastly, defendant asserts that the judge failed to express appropriate reasons for imposition of a consecutive sentence on the robbery convictions. See State v. Miller, 108 N.J. 112, 122 (1987). The judge merely imposed consecutive sentences without stating his reasons. We agree that the judge did not discuss the factors enumerated in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). However, "crimes involving multiple victims represent an especially suitable circumstance for the imposition of consecutive sentences." State v. Molina, 168 N.J. 436, 442 (2001). Occasionally, we may dispense with the requirement to remand for reasons for imposing consecutive sentences, especially when they involve more than one victim. Ibid. While a statement of reasons is crucial to the appellate review, we are satisfied that here the "crimes involv[ed] multiple victims" and, therefore, we conclude that the imposition of consecutive sentences did not amount to an abuse of discretion. See ibid.

 
The matter is remanded to correct the sentence to reflect merger of the robbery and conspiracy to commit robbery convictions. In all other respects, the judgment of conviction is affirmed.

Defendant was indicted along with codefendants, Al Tariq Cole and Curtis Fuller. Cole pled guilty and waived his appearance on the second day of trial.

Weapons offenses charged in Counts Four, Five, Eight, and Nine were dismissed on motion by the State during trial and Count Six was amended to remove the statement "while armed with or threatening the immediate use of a deadly weapon," because the victim, Lin, testified "that he didn't believe that the paint ball gun was actually . . . a real gun."

N.J.S.A. 2C:43-7.2.

Throughout the trial, the location was referred to as both St. Paul and St. Paul's Avenue, as well as St. Paul Street.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

(continued)

28

A-5321-05T4

June 28, 2007