STATE OF NEW JERSEY v. TIMOTHY HEARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5401-04T45401-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY HEARD,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 10, 2007 - Decided

Before Judges Cuff, Lisa and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-07-1104.

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

Anne Milgram, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

A Middlesex County Grand Jury returned a twenty-five count indictment charging defendant, and co-defendants, Jalonn Lassiter and Kyle Parker-Hall, with criminal offenses in the burglary of 82 Central Avenue, New Brunswick, and in the armed robberies, aggravated sexual assaults and kidnapping of the victims who resided at 31 Stone Street, New Brunswick, which occurred on March 8, 2004. After a jury trial, defendant was found guilty of third-degree burglary of 82 Central Avenue, N.J.S.A. 2C:18-2 (count six), which is a lesser offense of the original charge in the indictment as the jury could not agree whether the offense was committed while armed; third-degree theft of property in excess of $500, from the resident of 82 Central Avenue, N.J.S.A. 2C:20-3 (count seven); second-degree conspiracy to commit armed-burglary, N.J.S.A. 2C:5-2, and N.J.S.A. 2C:18-2(a) (count one); and second-degree burglary of 31 Stone Street, N.J.S.A. 2C:18-2 (count eight). Defendant was acquitted of second-degree possession of a weapon (handgun), N.J.S.A. 2C:39-4a (count five) and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count seventeen).

No verdict was reached on the charges of third-degree possession of the weapon (box cutter) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); and the five counts of first-degree robbery, N.J.S.A. 2C:15-1, (counts nine through thirteen).

On March 11, 2005, defendant's motion for a new trial was denied. After merger of count one, defendant was sentenced on count eight to a ten-year prison term with an eighty-five-percent period of parole ineligibility under the "No Early Release Act," N.J.S.A. 2C:43-7.2; and on counts six and seven, to four-year prison terms to be served concurrently with each other but consecutively with the term imposed on count eight. This resulted in an aggregate prison sentence of fourteen years with an eight and one-half year period of parole ineligibility. Applicable monetary sanctions were levied.

On appeal defendant presents the following arguments for our consideration:

POINT I.

THE TRIAL COURT SUA SPONTE SHOULD HAVE EITHER PRECLUDED RAYMOND DARGAN, AND SAMPSON COLEMAN FROM TESTIFYING AS STATE'S WITNESSES IN PRISON GARB OR DECLARED A MISTRIAL. (U.S. Const. Amend VI; N.J. Const. (1947) Art. I, Para 10) (NOT RAISED BELOW).

POINT II.

THE TRIAL COURT SUA SPONTE SHOULD HAVE EXCLUDED THE TESTIMONY REGARDING LASSITER'S SEXUAL ASSAULT ON C.D. AND M.L. AND PARKER-HALL'S SEXUAL ASSAULT ON N.R. AS EITHER IRRELEVANT OR BECAUSE ITS NON-EXISTENT PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY ITS PREJUDICIAL EFFECT CONTRARY TO N.J.R.E. 403. (U.S. Const. Amend VI; N.J. Const. (1947) Art. I Para 10) (NOT RAISED BELOW).

POINT III.

THE TRIAL COURT SUA SPONTE SHOULD HAVE EXCLUDED THE TESTIMONY REGARDING [DEFENDANT'S] OTHER CRIME AND BAD ACTS PURSUANT TO N.J.R.E. 404(b) AND N.J.R.E. 403, NAMELY HIS ARREST FOR POSSESSION OF MARIJUANA. (U.S. Const. Amends VI & XIV; N.J. Const. (1947) Art. I, Para 10 (NOT RAISED BELOW).

POINT IV.

THE TRIAL COURT SUA SPONTE SHOULD HAVE EXCLUDED SAMPSON COLEMAN'S TESTIMONY REGARDING [DEFENDANT'S] STATEMENTS IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO COUNSEL WHEN COLEMAN WAS USED BY THE STATE AS AN INVESTIGATORY TOOL WITH THE SPECIFIC INTENT OF EXTRACTING INCRIMINATING INFORMATION FROM [DEFENDANT]. (U.S. Const. Amends V, VI & XIV; N.J. Const. Art I, Para 10 (NOT RAISED BELOW).

POINT V.

THE TRIAL COURT SUA SPONTE SHOULD HAVE EXCLUDED THE LETTER CONFISCATED BY THE POLICE FROM [DEFENDANT'S] JAIL CELL FROM EVIDENCE BECAUSE [DEFENDANT'S] FEDERAL AND STATE RIGHTS TO COUNSEL WERE VIOLATED IN THAT PROCESS. (U.S. Const. Amends V & VI; N.J. Const. (1947) Art. I Para 10) (NOT RAISED BELOW).

POINT VI.

THE TRIAL COURT REVERSIBLY ERRED IN FAILING SUA SPONTE TO ISSUE A JUDGMENT OF ACQUITTAL REGARDING COUNTS SIX AND SEVEN, AND IN REJECTING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT EIGHT OF THE INDICTMENT, NAMELY BURGLARY AND THEFT AT 82 CENTRAL AVENUE AND BURGLARY WHILE ARMED AT 31 STONE STREET BECAUSE OF THE LACK OF A PRIMA FACIE CASE. (U.S. Const. Amends V & VI; N.J. Const. (1947) (Art. I Para 10) (NOT RAISED BELOW).

POINT VII.

THE TRIAL COURT REVERSIBLY ERRED IN REJECTING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL BASED UPON INCONSISTENT VERDICTS, LACK OF SUPPORT IN THE RECORD AND CONFUSING INSTRUCTIONS. (U.S. Const. Amend VI; N.J. Const. (1947) Art. I Para 10).

POINT VIII.

THE TRIAL COURT REVERSIBLY ERRED IN OVERRULING DEFENSE COUNSEL'S OBJECTION TO THE PROSECUTOR'S USING [DEFENDANT'S] NEW YORK CONVICTION TO IMPEACH HIS CREDIBILITY WHEN HE TOOK THE STAND. (U.S. Const. Amend VI; N.J. Const. (1947) Art. I Para 10).

POINT IX.

THE TRIAL COURT UNDULY COERCED THE HUNG JURY TO REACH A PARTIAL VERDICT IN THE CASE AT BAR. (U.S. Const. Amend VI; N.J. Const. (1947) Art. I Para 10).

POINT X.

[DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE OF DEFENSE COUNSEL FOR (1) FAILING TO OBJECT TO THE SUGGESTIVE MANNER IN WHICH THE PROSECUTOR HAD DONALD J. CRONE MAKE AN IN-COURT IDENTIFICATION OF HEARD AS BEING AT THE WOMEN AND CHILDREN'S PAVILION OF ST. PETER'S UNIVERSITY HOSPITAL AT 3: 00 A.M. ON MARCH 8, 2004 AND (2) FOR FAILING TO REQUEST A UNITED STATES V. WADE, SUPRA, HEARING ON WHETHER ANY OUT-OF-COURT IDENTIFICATION PROCEDURES USED ON MR. CRONE WERE SO UNDULY SUGGESTIVE AS TO TAINT HIS IN-COURT IDENTIFICATION OF [DEFENDANT]. (U.S. Const. Amend VI; N.J. Const. (1947) Art. I Para 10).

POINT XI.

EXHIBIT S-51, [DEFENDANT'S] LETTER TO HIS UNCLE WALTER RICHARDSON SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE IN THE RECORD BECAUSE IT WAS THE PRODUCT (1) OF PROSECUTORIAL MISCONDUCT IN CIRCUMVENTION OF THE HEARING PROCEDURES OF N.J.R.E. 803 AND N.J.R.E. 104(C) AND (2) INEFFECTIVE ASSISTANCE OF DEFENSE COUNSEL'S FAILURE TO REQUEST A STATE V. GROSS HEARING TO DARGAN'S LETTER TO HIS UNCLE IN WHICH THE PROSECUTOR WOULD HAVE HAD TO DEMONSTRATE ITS RELIABILITY BY A PREPONDERANCE OF EVIDENCE AS A PRE-REQUISITE FOR ADMISSION INTO EVIDENCE. U.S. Const. Amend VI; N.J. Const. (1947) Art. I Para 10).

POINT XII.

[DEFENDANT'S] TEN YEAR SENTENCE FOR HIS CONVICTION OF COUNT EIGHT VIOLATED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY AND TO CONFRONT HIS ACCUSERS. (U.S. Const. Amend VI; N.J. Const. (1947) Art. I Para 10).

POINT XIII.

[DEFENDANT'S] SENTENCES WERE MANIFESTLY ILLEGAL AND EXCESSIVE.

In a supplemental, pro se brief filed by defendant these additional points are asserted:

POINT 1.

THE [TRIAL] JUDGE ERRED IN HIS JURY CHARGE OF CONSPIRACY WHEN HE DIDN'T INCLUDE AND EXPLAIN RENUNCIATION (NOT RAISED BELOW).

POINT 2.

[DEFENDANT] DIDN'T RECEIVE A FAIR TRIAL WHEN 1) THE [TRIAL] JUDGE ERRED IN NOT INCLUDING THE LESSER-INCLUDED OFFENSE OF 2ND DEGREE ROBBERY, AND 2) DEFENSE COUNSEL FAILED TO REQUEST THE SAME LESSER-INCLUDED OFFENSE, WHICH INCLUDED INEFFECTIVE REPRESENTATION (NOT RAISED BELOW).

POINT 3.

[DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO MOVE FOR A JUDGMENT OF ACQUITTAL OF COUNTS 6, 7, AND 8.

POINT 4.

[DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE OF DEFENSE COUNSEL WHEN DEFENSE COUNSEL FAILED TO OBJECT TO STATE'S WITNESSES TESTIFYING IN PRISON GARB.

POINT 5.

[DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF DEFENSE COUNSEL FOR [SIC] FAILING TO OBJECT TO THE INCLUSION OF [DEFENDANT'S] OTHER CRIME AND BAD ACTS PURSUANT TO N.J.R.E. 403 AND 404(B), NAMELY [DEFENDANT'S] ARREST FOR POSSESSION OF MARIJUANA.

After review of the record in light of the written arguments advanced and the prevailing standards of law, we affirm defendant's convictions. The State concedes, and we agree, that a remand is necessitated for reconsideration of defendant's sentence on count eight because the base term imposed exceeds the former presumptive term. State v. Natale, 184 N.J. 458, 295-96 (2005).

I.

We recite a general statement of the facts taken from the evidence presented at trial. Additional specific facts will be included as necessary to provide context when addressing defendant's arguments.

On March 8, 2004, at about 1:30 a.m., one of the six residents of the first-floor apartment at 82 Central Avenue, New Brunswick, was awakened by a noise, and saw "three of the four black figures" standing about eight feet in front of him, inside the apartment. After an exchange of brief comments, the intruders left and the resident returned to sleep. The following morning, another resident discovered that his laptop computer and fifty dollars were missing.

That same morning, three female residents of 31 Stone Street, New Brunswick, accompanied by additional friends, returned to their first floor apartment at approximately 2:00 a.m. One male friend described seeing four "black males entering the [living] room with ski masks on." The intruders, Raymond Dargan, Lassiter, Parker-Hall and defendant, demanded money from the male then took him to the bedroom belonging to C.D., a female resident. C.D. described seeing four black men, in their early twenties, wearing gloves, hoodies on their heads, and face coverings enter her room. One intruder held a box-cutter. The intruders demanded money and went through C.D.'s belongings.

The intruder's descriptions, as provided by the other victims, consistently described four African-American males, between the ages of eighteen and twenty-five. Other than the area around their eyes, their faces and heads were covered; one wore white clothing and the others wore dark, baggy clothing.

The seven victims were gathered together by the intruders and placed in the bathroom. One male was punched in the face, and threatened with a gun after he attempted to call 911 on his cellular telephone. The group was taken from the bathroom to the living room and required to lay face down on the floor. Thereafter, the other male victim was threatened with a gun tapped against his head; three female residents, C.D., N.R. and M.L. were sexually assaulted. The intruders demanded that the victims turn over money, credit cards, keys, and marijuana. The seven victims were stripped and placed in a closet. The victims later determined that the intruders had ransacked the apartment, and stole cell phones, a digital camera and more than $500 in cash.

At approximately 3:00 a.m., Lassiter, Parker-Hall, Dargan and defendant proceeded to St. Peter's Hospital. The hospital's video security system recorded four men walking through the hospital from the security station to the emergency-room lobby. One of the men was seen carrying a case for a laptop computer.

Defendant testified on his own behalf. He maintained that even though he was in the company of Dargan, Lassiter, and Parker-Hall that morning, and he admitted he was the man wearing white clothing shown on the hospital video, he never entered 82 Central Avenue or 31 Stone Street and did not participate in the thefts or assaults of the residents.

II.

We determine that the arguments presented in points II, IV, V, VIII, IX, and XI of defense counsel's brief lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We address the remaining arguments in the order in which they are presented. As to the supplemental submission by defendant, we address defendant's supplemental arguments raised in points 1 and 2. The other points are similar to the arguments raised by counsel's brief. Specifically, point 3 is encompassed in the arguments presented in support of points VI and VII; point 4 is subsumed in the discussion of point I; and point 5 is subsumed in discussion of point III.

III.

First, defendant claims error because the trial court, sua sponte, failed to prevent the State's witnesses, Dargan and Sampson Coleman, from testifying while dressed in prison garb. Defendant maintains that neither courtroom security nor any other State interest required the witnesses to appear in prison garb, which prejudiced him by the inferential suggestion of his own guilt by the association with others involved in criminal acts.

Prior to trial, the assistant prosecutor represented that the State would ensure the availability of civilian clothes for any testifying witness who was incarcerated and that if a witness declined the prosecutor would ask the court to compel him to wear civilian clothing. Defense counsel then stated: "I have no problem with them coming in in prison garb . . . . It is going to be evident that these people are incarcerated . . .

I don't care one way or another." The court expressed its preference that the witnesses testify in civilian clothing stating, "but if they refuse[,] rather than get into some type of an issue . . . . I'd just as soon let them [the witnesses] make that determination."

Because there was no objection at trial, we review the claim under the plain error doctrine, R. 2:10-2, and "disregard an error unless it [was] 'clearly capable of producing an unjust result.'" State v. Daniels, 182 N.J. 80, 95 (2004) (quoting Rule 2:10-2). An error is capable of proving an unjust result where it raises "a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

To insure a criminal defendant his constitutional right to receive a determination of guilt or innocence based solely on the evidence introduced at trial, the Supreme Court has required that a defense witness can not be required to appear in restraints, without a demonstration of their necessity, or in prison garb. State v. Artwell, 177 N.J. 526, 539 (2003). "[R]equiring a witness to testify in prison clothing further[s] no vital State interest . . . . [I]nstead that practice only prejudices a defendant both by undermining his or her witness's credibility and suggesting a defendant's guilt by association." Ibid. (quotations and citations omitted).

We extended application of the principles expressed in Artwell to the State's witnesses. State v. Russell, 384 N.J. Super. 586, 599 (App. Div. 2006). Russell was decided after defendant's trial and our determination was not to be given retroactive effect. Ibid.

In both Artwell and Russell, the prejudice to the respective defendants, which required the reversal of their convictions, resulted in large part, from the fact that the witnesses were shackled, not merely because they wore prison garb. Here, we conclude that permitting the State's witnesses, who were not restrained, to testify as State's witnesses wearing the khaki slacks and shirts issued by the Department of Corrections was harmless and that fact alone was not "clearly capable of producing an unjust result." R. 2:10-2; see State v. Carrion-Collazo, 221 N.J. Super. 103, 111 (1987), certif. denied, 110 N.J. 171 (1988) (any error resulting from defendant testifying while wearing prison garb was harmless as it was part of the "defense trial strategy," previously communicated to the court and understood by the defendant).

Two substantial reasons support this conclusion. First, the substance of the witnesses' testimony, which centered largely on the sexual assaults, worked no prejudice towards defendant. Coleman reported defendant's conversations, which included comments attributed to defendant about the sexual assault of M.L. Dargan testified that defendant was inside 31 Stone Street with the others and described the sexual assaults of N.R. Importantly, Dargan retracted a prior statement that defendant had participated in the assault of M.L. The fact that defendant was acquitted of the sexual assault of M.L. supports the conclusion that the jury was not improperly influenced by the witnesses' mode of dress.

Second, as noted by defense counsel, it was very clear from their testimony that the witnesses were incarcerated, and that their cooperation, in part, inured to their benefit through the State's offer of a favorable plea agreement. Counsel did not object to the witnesses' attire and asserted indifference to the State's offer of clothing and its intention to require the witnesses to wear civilian attire. In fact, counsel assented to the witnesses wearing prison garb, strongly suggesting that the witnesses' clothing would have no impact.

Relief will not be granted on a claim of error that defense counsel has "induced." State v. Corsaro, 107 N.J. 339, 346 (1987); see also State v. Jenkins, 178 N.J. 347, 358 (2004) (invited error is error that defense counsel has "induced"). Defense counsel expressly declined the offer of civilian clothing designed to obscure the witnesses' prisoner status. Defendant cannot now complain following his conviction that the strategy was misguided. Moreover, after review of all evidence, we conclude that in this matter the witnesses' appearance at trial in prison garb was not capable of producing an unjust result.

IV.

Next, defendant claims the trial court should have excluded, sua sponte, testimony that defendant was charged with possession of a controlled dangerous substance (CDS). In the execution of a search warrant marijuana was discovered in the residence where defendant was staying. At trial, the prosecutor asked Detective John Selesky whether contraband was found in the execution of the search warrant. He responded, "a few bags of marijuana . . . were found on the floor." Then, specifically referencing defendant, Detective Selesky said "he was checked for contraband. He had nothing on him." Further questioning regarding the processing of the evidence elicited the following response from the detective:

[A]ll the people that were in the apartment were . . . brought down for the marijuana and charged with the marijuana. So we had to process everybody. We then brought up Raymond Dargan and Timothy Heard to the Major Crimes offices[,] which is located on the second floor of our building[,] and put them each in a separate interview room.

Because defendant did not object at trial, we apply the plain error standard. R. 2:10-2.

Although this "other crimes evidence" was not material to the case, see N.J.R.E. 404(b), and should have been excluded, we conclude reversal on the basis of the unchallenged error is not warranted. We determine that the error was not clearly capable of producing an unjust result after consideration of the overwhelming evidence of defendant's guilt presented at trial.

Defendant's conviction for conspiracy and armed burglary of 31 Stone Street was supported by evidence including: defendant's admission that he was in the area with the co-defendants, although he denied that he entered the apartment, the victims' identification of four intruders, one of whom wore white clothing; the witnesses' testimony that one intruder held a box-cutter type knife and another intruder threatened victims with a handgun; the testimony of co-defendant Dargan placing defendant in the apartment; the hospital surveillance video tape, which shows defendant wearing white clothing walking with Lassiter, Parker-Hall and Dargan; and defendant's admission that on the night of the incident, he wore the white "hoodie" and sweat pants that were seized from his residence.

The evidence supporting defendant's conviction of the burglary of 82 Central Avenue included: the witnesses' description of one intruder wearing "a white do-rag"; "two head-rags" seized from the basement of defendant's residence; the hospital video showing one of the four with a laptop case in hand, and the laptop owner's identification of the case; defendant's testimony that Lassiter was trying to sell a laptop; Dargan's testimony that Lassiter was carrying a laptop when he met him, Parker-Hall and defendant before going to 31 Stone Street; and Coleman's testimony that defendant admitted the group "was going through [a] couple houses . . . trying to get some money" before reaching 31 Stone Street.

Overall, the evidence amply supported the jury's finding of guilt beyond a reasonable doubt, State v. Banko, 182 N.J. 44, 46 (2004), and the inadvertent revelation of the possession of CDS charge did not lead the jury to a result it otherwise might not have reached.

V.

The analysis of the underlying facts supporting the jury's convictions that is set forth in the above discussion compels us to reject defendant's contention of error based upon the adequacy of the evidence. A motion for judgment of acquittal is governed by Rule 3:18-1, which states:

At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.

The general test applied when determining the sufficiency of evidence is whether, viewing the State's direct or circumstantial evidence in its entirety, and after affording the State the benefit of all favorable inferences that reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 459 (1967). Applying this standard to the present case, we conclude that the State presented more than sufficient evidence from which a rational jury could find beyond a reasonable doubt that defendant committed the crimes charged. Ibid.

We also reject the related argument raised by defendant that the trial judge erred by denying defendant's motion for a new trial asserting the jury reached "inconsistent verdicts." Generally, there is no requirement in criminal cases that jury verdicts be consistent. State v. Grey, 147 N.J. 4, 9-10 (1996); State v. Scherzer, 301 N.J. Super. 363, 407 (App. Div.), certif. denied, 151 N.J. 466 (1997). Inconsistent verdicts are permissible so long as sufficient evidence in the record is presented "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). As noted, ample evidence supported the jury's verdict. We conclude the trial judge properly exercised his discretion in denying defendant's motion and no miscarriage of justice warrants reversal. State v. Gaikwad, 349 N.J. Super. 62, 86 (App. Div. 2002).

VI.

Defendant also argues that his trial counsel was ineffective under standards established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), because he failed to challenge the hospital security guard's in-court identification of defendant. Defendant maintains that the identification was "blatantly suggestive." Defendant also contends counsel should have requested a Wade hearing in an effort to discover whether the witness had made any prior out-of-court identifications. These arguments are specious.

It has been a consistent feature of our law that "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). This is so because ineffective assistance of counsel claims "involve allegations and evidence that lie outside the trial record." State v. Castagna, 187 N.J. 293, 313 (2006). However, that rule is not absolute. "[W]hen the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal." Ibid. (citing State v. Allah, 170 N.J. 269, 285 (2002)). Such is the case with the present challenge.

The guard, Donald J. Crone, was shown a still-frame photograph taken from the security video tape of the four young men he encountered at 3 a.m. at St. Peter's Hospital on March 8, 2004. After acknowledging that he had seen "the young man who ha[d] white sweat pants and a white hood on" arriving at the hospital, Crone was asked: "Do you see him today?" Crone then identified defendant, who was seated at counsel table.

It is undisputed that Crone's sole identification of defendant as one of the four men Crone encountered in the hospital that morning was in the course of his trial testimony. Had a prior out-of-court identification been uncovered during cross-examination, then a Wade analysis would be warranted. However, based upon the facts as presented, we conclude Wade is inapposite. Consequently, we find no validity to defendant's argument that he received ineffective assistance from his trial counsel. Additionally, we conclude that the State's inquiry referencing the description of defendant's clothing, to distinguish him from the other three men in the photograph, was neither suggestive nor improper.

VII.

Defendant's first two supplemental arguments suggest omissions occurred in the jury instructions. The challenges are reviewable under Rule 2:10-2, only as plain error because no objection to the jury charge was made. Das v. Thani, 171 N.J. 518, 525 (2002). Plain error requires a determination that a legal impropriety existed in the charge that prejudicially affected the substantial rights of the defendant and that the error is sufficiently grievous to convince us that it 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). The stricter "plain error" standard applies because a failure to object deprives the court of an opportunity to make a prompt correction and suggests that counsel did not perceive a potential for prejudice from the claimed error. Aly v. Garcia, 333 N.J. Super. 195, 205 n.2 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001); Bradford v. Kupper Assocs., 283 N.J. Super. 556 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996).

Defendant maintains that the trial court erred because no charge regarding renunciation was given. In support of this argument defendant recites that he testified that when Lassiter, Parker-Hall and Dargan explained their plan to enter an apartment to "rob for some weed," he stated he wanted "no part of it." Thereafter, the four walked to the targeted house, but defendant waited outside "in the middle of the block," until the group exited the residence. Then he rejoined them.

Were it applicable in this case, renunciation would be an affirmative defense to the charge of conspiracy to commit armed burglary. N.J.S.A. 2C:5-2(e). Renunciation must be proven by a preponderance of the evidence. Defendant must show that his actions demonstrated that he "informed the authorit[ies] of the existence of the conspiracy and his participation therein, and thwarted or caused to be thwarted the commission of any offense in furtherance of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of criminal purpose." Ibid.

At best, defendant's testimony showed that he acquiesced to the criminal conduct of the others. It is certain that defendant never informed the police or acted to thwart the proposed criminal acts, defeating any claim of renunciation. We conclude that the failure to instruct the jury on the defense of renunciation of purpose did not amount to plain error.

We also reject defendant's contentions raised in point 2, which advocates that error occurred because the jury charge omitted a lesser-included offense. Defendant's argument targets the armed-robbery charges with respect to 31 Stone Street. He advances that the trial judge should have charged lesser-included second-degree robbery (not armed), and that his attorney was ineffective for not requesting such a charge. However, defendant was not convicted of the first-degree armed robbery charges against the specified victims at 31 Stone Street, as the jury was deadlocked on counts nine through thirteen of the indictment. We, therefore, have no occasion to address this argument.

VIII.

We turn to defendant's claims challenging his sentence. The State concedes that the Court's ruling in Natale, supra, 184 N.J. at 495-96, requires that defendant be resentenced for armed burglary, as the sentence ordered was set above the then presumptive term. Ibid. We agree and vacate the sentence on count eight. The remand is limited and shall be based upon the record of the prior sentencing as we conclude that the trial judge's findings regarding the aggravating factors, non-existent mitigating factors, and the basis for ordering consecutive terms were amply supported by the facts of record. State v. Abdullah, 184 N.J. 497, 512-15 (2005).

 
Accordingly, we affirm defendant's convictions and sentence except for the sentence ordered on count eight, which is vacated, and we remand that matter for resentencing.

Prior to trial, the State dismissed counts two, fourth-degree unlawful possession of a weapon (box cutter), N.J.S.A. 2C:39-5(d), and four, third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), as they were lesser included offenses of other crimes charged. Also, the trial judge granted defendant's motion for acquittal on the seven counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b), counts nineteen through twenty-five. Finally, counts fourteen through sixteen and count eighteen, charging aggravated sexual assault, N.J.S.A. 2C:14-2(a), were not alleged against defendant.

The indictment, which alleged conspiracy to commit robbery or burglary while armed, was molded by the trial judge after the verdict was rendered, as the jury was unable to determine that defendant was armed during the burglary of 82 Central Avenue.

One additional resident was in her bedroom, which was situated away from the general living space. She was neither aware of nor involved in the incident.

The police determined that Coleman had made a call from one of the stolen cellular telephones. Coleman, who was incarcerated in the same facility as defendant for offenses not related to those at bar, spoke to defendant who discussed the incident at 31 Stone Street. During trial, Coleman related his non-involvement in the present incident, and related the substance of his conversations with defendant. Coleman acknowledged that his cooperation resulted in a favorable plea agreement.

U.S. v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

(continued)

(continued)

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A-5401-04T4

October 3, 2007