STATE OF NEW JERSEY v. JAMES RIPPY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6069-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES RIPPY,

Defendant-Appellant.

___________________________________

December 14, 2010

Submitted: December 1, 2010 - Decided

Before Judges Fisher and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-09-01179.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant James Rippy was charged with second-degree burglary, N.J.S.A. 2C:18-2; first-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(2), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. The charges stemmed from his and co-defendant David Rivera's assault and robbery of the victim in the victim's apartment. Defendant was tried in absentia and convicted on all charges. He was sentenced to a twenty-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

In this appeal, defendant contends that the trial judge committed plain error by failing to sua sponte instruct the jury on his absence from the trial and by giving an erroneous instruction on coconspirator liability for the robbery. Because we agree with these contentions, we are constrained to reverse and remand for a new trial.

It is improper for a trial court to instruct "the jury that it could consider defendant's voluntary absence from the trial as evidence of flight, that is, evidence of consciousness of guilt . . . . " State v. Ingram, 196 N.J. 23, 44 (2008). "In the case of an absentee defendant . . . the facts relating to the absence are unknown. The absence from trial is not necessarily probative of guilt at all, but is highly prejudicial under any circumstance." State v. Horne, 376 N.J. Super. 201, 213 (App. Div.), certif. denied, 185 N.J. 264 (2005). To prevent prejudice, the court should instruct on the defendant's absence from trial. At the time of the trial in this case, the model charge on the defendant's absence from trial was combined with the model charge on the defendant's election not to testify:

Election Not To Testify

As you know, (defendant) elected not to testify at trial. It is his/her constitutional right to remain silent[.]

You must not consider for any purpose or in any manner in arriving at your verdict the fact that (defendant) did not testify. That fact should not enter into your deliberations or discussions in any manner, at any time.

(Defendant) is entitled to have the jury consider all evidence presented at trial. He/she is presumed innocent even if he/she chooses not to testify.

. . . .

Absence From Trial

As you know, (defendant) was absent from the trial. You should not speculate about the reason for his/her absence.

You are not to consider for any purpose or in any manner in arriving at your verdict the fact that (defendant) was not present at trial. That fact should not enter into your deliberations or discussions in any manner, at any time.

(Defendant) is entitled to have the jury consider all evidence presented at trial. He/she is presumed innocent even if he/she is not present.

[Model Jury Charge (Criminal), "Election Not to Testify and/or Defendant's Absence From Trial" (2002).]1

The trial judge gave the Election Not To Testify charge. This was insufficient; as the charge's language does not address defendant's absence, thus impermissibly leaving the jury free to speculate about why he was not present at trial, and to infer guilt from his absence. Because of the potential for prejudice due to defendant's absence from trial, the failure to sua sponte give the "Absence From Trial" charge was clearly capable of producing an unjust result warranting reversal of defendant's conviction. R. 2:10-2.

As for the conspirator liability charge, defendant did not deny that he and Rivera shared a plan to commit burglary and assault. He maintained that he did not intend to conspire with Rivera to rob the victim but merely wanted to assault the victim and told Rivera that they were going to steal from the victim only as a way to entice Rivera to participate in the assault.

The State theorized that defendant was a principal to the robbery or, alternatively, Rivera committed the robbery and defendant was vicariously liable as a coconspirator. Thus, to determine whether defendant was vicariously liable for the robbery that Rivera committed, the critical issue became whether defendant's conscious object in conspiring with Rivera was to promote the crime of robbery or make it easier for Rivera to commit the robbery.

The charge given was not limited to the State's alternative theory of coconspirator liability for the robbery. Rather, it instructed the jury on coconspirator liability as an alternative theory of guilt as to all of the crimes with which defendant was charged. This error impermissibly left the jury free to find defendant liable for the robbery Rivera committed as long as it believed that defendant's conscious object was to promote either burglary, assault or weapons possession. Thus, the instruction was clearly capable of producing an unjust result warranting reversal of defendant's robbery conviction.

Having reached these conclusions we need not address defendant's challenge to his sentence.

1 This charge is identical to the current charge on defendant's absence from trial. See Model Jury Charge (Criminal), "Defendant's Absence From Trial" (2004).