STATE OF NEW JERSEY v. JACHIN ICKES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5860-07T45860-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JACHIN ICKES,

Defendant-Appellant.

_____________________________

 

Argued September 15, 2009 - Decided

Before Judges Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-05-1087A.

Lance D. Brown argued the cause for appellant (DePinto and Brown, LLC, attorneys; Mr. Brown and Julie A. Higgs, co-counsel; Mr. Brown on the brief).

James F. Smith, Assistant County Prosecutor, argued the cause for respondent (Theodore F. L. Housel, Atlantic County Prosecutor, attorney; Mr. Smith, of counsel and on the brief).

PER CURIAM

On May 10, 2007, an Atlantic County Grand Jury charged defendant in a single count indictment with second-degree robbery, N.J.S.A. 2C:15-1. Tried to a jury, defendant was convicted as charged. On June 20, 2008, after determining that mitigating sentencing factors, N.J.S.A. 2C:44-1b(7), (9) and (10), substantially outweighed aggravating sentencing factors, N.J.S.A. 2C:44-1a(9) and (12), the court sentenced defendant to a term appropriate for a crime one degree lower, that is, the court sentenced defendant to a four-year term of imprisonment, subject to an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed all appropriate fines and penalties.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT SHOULD HAVE, SUA SPONTE, CHARGED THE JURY WITH THE LESSER-INCLUDED OFFENSES OF THIRD AND FOURTH[-]DEGREE ASSAULT, BECAUSE THE FACTS PROVIDED A CLEAR AND RATIONAL BASIS FOR THESE CHARGES AND DISMISSAL OF THE ROBBERY CHARGE. [(NOT RAISED BELOW).]

POINT II.

THE PROSECUTOR MISREPRESENTED THE LAW ON INTOXICATION IN HIS SUMMATION, THEREBY CONFUSING THE JURY, PREJUDICING DEFENDANT AND NECESSITATING A NEW TRIAL. [(NOT RAISED BELOW).]

POINT III.

THE PROSECUTOR'S VIDEOTAPE [R]EPLAY OF INFLAMMATORY TRIAL TESTIMONY - WITHOUT NOTICE TO COUNSEL, AN EVIDENTIARY HEARING OR A LIMITING INSTRUCTION - PREJUDICED DEFENDANT AND ENTITLES HIM TO A RETRIAL.

POINT IV.

DURING VOIR DIRE, THE JUDGE'S DISCUSSION OF THE LAW REGARDING EVALUATION OF THE STATE'S EVIDENCE CONFUSED THE MEMBERS OF THE JURY POOL, INTERFERED WITH THEIR PROPER CONSIDERATION OF THE STATE'S BURDEN OF PROOF, AND ENTITLES DEFENDANT TO A REMAND.

We agree with defendant's argument in Point I and reverse.

I.

On the evening of April 12, 2007, defendant patronized at least three restaurants or bars in Atlantic City, and drank a minimum of eight cocktails, beers and shots. On that same evening, Harold Kim, a seventy-five-year old male, was in Atlantic City. On April 13, 2007, at approximately 4:25 a.m., Kim was in the bus terminal waiting room at the Tropicana Casino & Resort intending to board a bus to return to Flushing, New York. Aware that riders generally give the bus driver a $2 tip on boarding the bus, Kim sought to obtain change of a five-dollar bill from the terminal's cashier. Unable to obtain change from the cashier, Kim exited the terminal and started to board the bus which had parked a few feet outside of the waiting room's doorway.

As Kim boarded the bus holding his bus ticket and the five-dollar bill in his hand, defendant approached him from his side and stepped on one of Kim's feet. As he did so, defendant placed his hand around Kim's neck and lifted him off the ground while repeatedly asking Kim his name. While facing the bus driver, Kim asked the driver to call the police. In response, defendant, keeping his hand around Kim's neck, told Kim that he was the police. Believing that defendant was attempting to take the five-dollar bill out of his hand, Kim placed the bill into his own mouth.

Defendant pulled Kim from the bus stairway and threw Kim onto the ground, as observers screamed for defendant to let Kim go. While on the ground, defendant placed his foot on Kim's chest. Kim crawled out from underneath defendant on his hands and knees, and re-entered the waiting room. While crawling, Kim hollered for the police, causing the five-dollar bill to drop from his mouth. Kim placed the bill into his jacket pocket.

Although Kim possessed a wallet containing $75, defendant never attempted to take the wallet, never demanded any money from Kim, or never sought to escape. As a result of the assault, Kim suffered pain throughout his body; lacerations to his hands and face; and an injury to his chest, for which he received medical treatment over the next several months.

Approximately eight individuals waiting to board buses witnessed the attack. One witness, Robert Conner, observed defendant swinging Kim around and throwing him down to the ground. Conner, attempting to assist Kim, heard defendant state that he was with the "CIA" or "FBI," and described defendant as acting if Kim was his prisoner. Conner described defendant's behavior as "deranged," "out of control" and "not all there, maybe on drugs or nuts."

Conner later explained that he did not believe defendant was drunk, but rather may have been on medication or had missed taking a required medication, "because someone in the right mind, to me, wouldn't be acting like that. . . It seemed more like a medical issue." Conner neither witnessed defendant attempting to take the five-dollar bill out of Kim's hand, nor heard defendant demand any money from Kim. According to Conner, "it wasn't a money issue." After witnessing the assault, Conner, along with several casino security guards who had arrived on the scene, separated the two men and kept them apart until the police arrived. While waiting for the police to respond, security guard Kevin Lippert asked Kim what had happened. Although Kim informed Lippert that defendant had physically pulled him from the bus and threw him to the ground, Kim never mentioned that defendant was attempting to take his five-dollar bill.

Patrolman Alexus Smith and William Logan, Jr., of the Atlantic City Police Department, responding to the scene, observed defendant acting belligerently. As the police officers walked toward defendant, defendant calmed down, allowing them to approach and arrest him. After the police placed handcuffs on defendant, they attempted to escort him from the terminal's waiting room, but defendant buckled his knees and refused to walk. With the assistance of several security guards, the police placed defendant into officer Smith's patrol vehicle. During the ride to police headquarters, defendant became aggressive, initially throwing his body back and forth in the rear of the patrol vehicle, and then up against the glass and metal cage that separated the rear of the vehicle from its front. While on route, defendant growled and spoke incoherently. Both Smith and Logan described defendant as acting erratically, as if under the influence of drugs.

At trial, in addition to presenting the testimony of Kim, Conner, and the two arresting police officers, all of whom testified in accordance with the aforementioned, the State introduced a videotape from the casino's security cameras that captured part of the events that occurred both outside and within the waiting room of the terminal. The tape does not show Kim standing inside the bus stairwell, nor that part of the assault that occurred on the sidewalk after defendant pulled Kim from the bus and threw him to the ground. Additionally, the videotape does not show the five-dollar bill Kim testified to having in his possession; nor was a five-dollar bill recovered by the police at the scene of the assault. Although defendant testified as to visiting restaurants and taverns earlier in the evening of the assault, he stated that he could not recall any events that occurred after 3:15 a.m. until he awoke in police custody later that morning after his arrest. At the time of defendant's arrest, defendant had in his possession $150 and several of his own credit cards.

II.

Defendant argues in Point I that the trial court erred in failing to sua sponte instruct the jury on the lesser-included offenses of third-degree aggravated assault and simple assault because the facts provided a clear and rational basis to convict on either charge and to acquit on the robbery charge. Defendant contends that the failure to charge these lesser-included offenses left the jurors with an inappropriate "all-or-nothing" choice. Because defendant did not raise this argument during trial, we review the argument under the plain error rule. R. 1:7-2; R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005).

A reviewing court will reverse on the basis of an unchallenged error, only if the error was "clearly capable of producing an unjust result." Ibid.; State v. Castagna, 187 N.J. 293, 312 (2006); State v. Macon, 57 N.J. 325, 337 (1971). To reverse for plain error, the reviewing court must determine that there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.

Proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instructions on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. Because a defendant should be tried with correct jury instructions, "an erroneous charge will rarely stand on the ground that the error was harmless." State v. Barden, 195 N.J. 375, 394 (2008).

In State v. Thomas, the Court reaffirmed the distinction "between those charges that are included within the charges in the grand jury indictment (included offenses) and those that relate to the charges returned by the grand jury (related offenses)." 187 N.J. 119, 129 (2006). "Whether an offense is an included offense of another charge requires a comparison of the statutory elements of each charge." Ibid. "On the other hand, whether offenses are related is not a function of a comparison of statutory elements. Instead, the focus is whether the offense charged and the related offense share a common factual nucleus." Id. at 130. Lesser-included offenses are those that are "established by proof of the same or less than all the facts required to establish the commission of the offense charged," N.J.S.A. 2C:1-8d(1), or "[they] consist[] of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein," N.J.S.A. 2C:1-8d(2), or "differ[] from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish [their] commission," N.J.S.A. 2C:1-8d(3). Thomas, supra, 187 N.J. at 130-31.

What is more, lesser-included offenses should only be charged to the jury if there is a rational basis in the evidence for the jury to convict the defendant of the included offense. N.J.S.A. 2C:1-8e; Thomas, supra, 187 N.J. at 131; State v. Brent, 137 N.J. 107, 117 (1994). Simply stated, there must be a rational basis to "find[] the defendant not guilty of the greater offense, as well as guilty of the lesser offense." State v. Pantusco, 330 N.J. Super. 424, 445 (App. Div.), certif. denied, 165 N.J. 527 (2000).

While "the 'rational basis' test . . . 'imposes a low threshold,'" State v. Scherzer, 301 N.J. Super. 363, 480 (App. Div. 1997) (quoting State v. Crisantos, 102 N.J. 265, 278 (1986)), the requirement must be more than an abstract reason for believing that the jury may acquit the defendant on the greater charge and return a guilty verdict on the lesser charge. "'[S]heer speculation does not constitute a rational basis.'" Thomas, supra, 187 N.J. at 132 (quoting Brent, supra, 137 N.J. at 118).

Where neither defendant nor the State requests a charge of a lesser-included offense, "'a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.'" Id. at 132 (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)); see also State v. Garron, 177 N.J. 147, 180 (2003); State v. Savage, 172 N.J. 374, 397 (2002). However, charging a lesser-included offense should not "cause complete surprise, or [be] so inconsistent with the defense as to undermine the fairness of the proceedings." Garron, supra, 177 N.J. at 181. It is against these principles that we consider defendant's argument. Depending on the facts adduced at trial, charges of third-degree and simple assault may be considered lesser-included offenses of robbery. A person is guilty of robbery if "in the course of committing a theft, he: (1) [i]nflicts bodily injury or uses force upon another; or (2) [t]hreatens another with or purposely puts him in fear of immediate bodily injury; or (3) [c]ommits or threatens immediately to commit any crime of the first or second degree." N.J.S.A. 2C:15-1. N.J.S.A. 2C:12-1b(7) defines third-degree assault as when one "[a]ttempts to cause significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury." N.J.S.A. 2C:12-1a(1) defines simple assault in part as where a person "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another."

We are satisfied that under these statutes, defendant's assault of Kim constituted an element or an integral part of the alleged robbery. We are also satisfied that there was a rational basis for the jury to acquit defendant of robbery and convict him of the lesser-included offense of assault. Although Kim believed that defendant was attempting to take the five-dollar bill out of his hand, there was sufficient evidence in the record for a reasonable jury to find to the contrary. Defendant identified himself as a police officer, or member of the FBI or CIA, and held Kim as an officer might hold a prisoner while taking the prisoner into custody. Although defendant asked Kim several times for Kim's last name, defendant never demanded that Kim give him any money. Nor did defendant attempt to take Kim's wallet. As Conner testified, the incident "wasn't a money issue." Defendant did not attempt to flee the scene but rather stayed there until the police arrived, all the time acting in an erratic manner, as if under the influence of drugs or alcohol. Clearly, under these facts, a reasonable jury could have concluded that defendant neither intended nor attempted to take the five-dollar bill out of Kim's possession.

We conclude that the failure to charge the lesser-included offenses of third-degree and simple assault constituted plain error because such failure to charge may have led the jury to convict defendant of robbery when it would not have done so had the assault been presented to them as an alternate basis on which to convict. See State v. Sloann, 111 N.J. 293, 299 (1988) (holding that "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve doubts in favor of conviction.") (quoting Keeble v. United States, 412 U.S. 205, 212-13 (1973)).

Reversed.

Although the arguments presented in Points I and II were not raised below, defendant failed to so indicate in the point headings, contrary to the mandatory requirement of Rule 2:6-2(a)(1).

Mr. Kim is now seventy-six years old.

Although defendant cites to the definition of simple assault, N.J.S.A. 2C:12-1a(1), he incorrectly referenced the offense as a fourth-degree crime, rather than a disorderly persons offense.

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A-5860-07T4

September 30, 2009