STATE OF NEW JERSEY v. ANTIONE D. STEVENS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4180-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTIONE D. STEVENS,

Defendant-Appellant.

________________________________________________________________

March 11, 2011

 

Submitted October 26, 2010 - Decided

 

Before Judges Skillman and Espinosa.

 

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-05-0871.

 

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

 

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Steven J. Harbace, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his sentence and convictions for first-degree robbery, N.J.S.A. 2C:15-1; first-degree use of a juvenile to commit a criminal offense, N.J.S.A. 2C:24-9; second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, and weapons offenses. For the reasons that follow, we affirm his conviction and remand for resentencing.

Defendant's convictions arise from the armed robbery of Antonio De la Cruz on December 5, 2006. Both the victim and T.T., a juvenile who participated in the robbery, identified defendant and testified about his involvement in the robbery.

T.T. testified that she was hanging out at her aunt's house in Jersey City with another juvenile, L.G., and Dafne Abad that evening. At the time, T.T. was seventeen, L.G. was fifteen and Dafne was eighteen. The three of them wanted to get a bottle of liquor to drink. As they were walking to the liquor store, a car pulled up, driven by someone they did not know. T.T. identified defendant in court as the driver. He introduced himself as "T." Defendant drove the girls to the liquor store. As the girls were putting together the money to purchase the liquor, defendant started asking them questions - whether they were cops and if they were "wired." The girls replied that they were not and even pulled down their sweaters to show that they were not "wired." The girls gave defendant their money and he purchased two bottles of liquor for them. T.T. testified that she intended only to get the liquor and go home but the three girls eventually drove to West New York with defendant.

T.T testified that she had never seen a gun before that evening, when defendant pulled one out and showed it to the girls. He told them that he wanted to "go catch a trick," which T.T. understood to mean that he wanted to rob somebody. T.T. said that she was scared but did not know what to do.

In West New York, they walked down the street, with T.T. and L.G. on one side and Dafne and defendant on the other side of the street. They encountered De la Cruz and started to follow him. T.T. stated that Dafne and L.G. went up to him and "stuck him up." She and defendant were standing there, and then, defendant unzipped De la Cruz's jacket and told L.G. to go through his pockets. T.T. saw the gun a second time as Dafne pointed it at the victim and spoke to him in Spanish. They took his cell phone, his money and his iPod and then told the victim to leave. As they were returning to the car, they saw a police car with its lights activated and started running. Eventually, the four of them were found lying down on a residential porch. The police confiscated the gun and took them into custody. T.T. identified the gun and cell phone in evidence as the gun defendant had that evening and as the victim's cell phone.

De la Cruz testified that he was walking home from work at approximately 3:30 a.m. when he was confronted by two young women speaking to him in English. When he continued walking toward his house, they grabbed him by his arms. He struggled until he observed a man and realized that one of the women had a gun. At trial, De la Cruz identified defendant as the man who mugged him with the young women and identified the gun used in the robbery. De la Cruz stated that defendant unzipped his jacket and "checked [him] over." His wallet, camera, phone and iPod were taken.

After he was told to leave, De la Cruz went home, where his father contacted the police. Later that evening, the police arrived at the house, advised De la Cruz that they had detained four people who matched the description given by his father. At the police station, De la Cruz identified the four detainees as the people who robbed him.

Defendant neither testified nor offered any witnesses on his behalf at trial. The jury convicted him on all charges: armed robbery, N.J.S.A. 2C:15-1 (count one); employing a juvenile to commit a crime, N.J.S.A. 2C:24-9 (count two); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four); and conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (count six).1 At sentencing, counts three and four were merged into count one. Defendant was sentenced on count one to twenty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to a concurrent term of ten years on count six, to a consecutive term of fifteen years on count two, and to appropriate fines and penalties.

In this appeal, defendant presents the following issues for our consideration:

POINT I

 

THE JURY INSTRUCTIONS ON ACCOMPLICE LIAB[I]LITY FOR ROBBERY DID NOT COMPLY AT ALL WITH STATE V. BIELKIEWICZ IN ALLOWING FOR DIFFERENT ACTORS TO BE CONVICTED OF DIFFERENT DEGREES OF ROBBERY DEPENDING ON THE INDIVIDUAL ACTOR'S STATE OF MIND. (NOT RAISED BELOW).

 

POINT II

 

THE JURY INSTRUCTIONS AND VERDICT IMPERMISSIBLY FAILED TO DISTINGUISH WHICH JUVENILE THE JURY BELIEVED DEFENDANT EMPLOYED IN A CRIMINAL SCHEME, THEREBY VIOLATING DEFENDANT'S RIGHT TO A UNANIMOUS VERDICT. (NOT RAISED BELOW).

 

POINT III

 

DEFENDANT'S CONSPIRACY CONVICTION SHOULD HAVE BEEN MERGED INTO HIS ROBBERY CONVICTION.

 

POINT IV

 

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

 

"The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Because these issues are raised for the first time on appeal, we limit our review to a search for plain error. R. 2:10-2; State v. Nesbitt, 185 N.J. 504, 516 (2006). To constitute plain error, the error defendant alleges in the charge must be a "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error 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); State v. Docaj, 407 N.J. Super. 352, 362 (App. Div.), certif. denied, 200 N.J. 370 (2009).

Defendant argues that his conviction for first-degree robbery should be reversed because the trial court failed, sua sponte, to charge the jury that they could convict him, based upon accomplice liability, of a lower-degree offense than the principal if the jury found that he was only agreeing to commit the lesser degree offense. Defendant's argument relies upon our decision in State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993). His reliance is misplaced.

In Bielkiewicz, the defendant and another male came to the aid of a companion who was embroiled in a fight with a tow truck operator towing illegally parked vehicles. At the time the defendant intervened, his companion was doing poorly in the fight. One witness testified that the companion rushed after the tow truck operator and fired fatal gunshots at him. However, there was some inconsistency in the testimony of other witnesses as to whether the defendant fired any of the shots or whether all gunshots were fired by his companion. Both defendant and his companion were convicted of murder.

If the jury in Bielkiewicz concluded that the defendant had not fired any of the shots and was only an accomplice, they would have to determine what his intent was. If they concluded he intended to aid his companion in the fatal shooting of the tow truck operator, they could find him guilty as an accomplice to murder. However, if they concluded that the defendant intended only to assault the victim but did not share the principal's intent that that assault cause death or serious bodily injury, he could be convicted of a lesser offense. Id. at 533. Because the evidence permitted the jury to reach such different conclusions as to the defendant's intent, we held that the jury must be properly instructed as follows:

"By definition an accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice." Therefore, a jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he "shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act."

 

[Id. at 527-528. (Citations omitted).]

We further emphasized,

[W]hen an alleged accomplice is charged with a different degree offense than the principal or lesser included offenses are submitted to the jury, the court has an obligation to "carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense."

 

[Id. at 528 (Emphasis added).]

 

In this case, the trial court submitted the lesser-included offense of second-degree robbery to the jury, stating

If you find the [S]tate has proved beyond a reasonable doubt that the defendant committed the crime of robbery as I have defined the crime to you, but if you find that the [S]tate has not proved beyond a reasonable doubt the defendant was armed with or used or threatened immediate use of a deadly weapon at the time of the commission of the robbery, then you must find the defendant guilty of robbery in the second degree.

 

Because we conclude that the court erred in submitting the lesser-included offense to the jury, we do not view the failure to give the instruction required by Bielkiewicz to be error, let alone plain error.

For an instruction on a lesser-included charge to be required, the evidence at trial must "clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Thomas, 187 N.J. 119, 136 (2006); State v. Jenkins, 178 N.J. 347, 381 (2004). There was no inconsistency in the evidence regarding the nature of defendant's participation. He initiated the armed robbery by drawing a weapon and telling his teenage passengers that he wanted to commit a robbery. The mere fact that Dafne Abad held the gun during the actual robbery does not vitiate defendant's expressed intent to commit an armed robbery. Defendant has cited no other evidence to support a conclusion that he and Dafne Abad did not share the same intent or that his intent was to commit a robbery that did not include the use of a deadly weapon. Plainly, the evidence did not provide a rational basis for the jury to convict defendant of robbery while acquitting him of armed robbery. Because the evidence of defendant's intent to commit an armed robbery was overwhelming, the failure to give the instruction required in Bielkiewicz was not plain error. State v. Rue, 296 N.J. Super. 108, 115-16 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997); see also State v. Sheika, 337 N.J. Super. 228, 251-52 (App. Div.), certif. denied, 169 N.J. 609 (2001).

We next turn to defendant's argument regarding the instruction and verdict sheet on the charge of employing a juvenile to commit a criminal offense. Count two of the indictment charged, in pertinent part:

[Defendant] being at least 18 years of age, knowingly did use, solicit, direct, hire, employ or conspired with TT and LG, a person(s) 17 years of age or younger, to commit the crime of Armed Robbery, First, in violation of N.J.S. 2C:15-1, contrary to the provisions of N.J.S. 2C:24-9 . . . .

The verdict sheet tracked this language, and in the jury instruction, the court consistently stated that to convict defendant of this charge, one of the elements the State had to prove beyond a reasonable doubt was that defendant knowingly used "T.T. and L.G." to commit the crime. (Emphasis added).

Defendant contends that the jury instruction and the verdict sheet should have required the jury to specify the particular juvenile used in the commission of the offense and that the failure to do so constituted plain error. To support this argument, defendant relies upon cases involving different victims or different legal theories that require unanimity among the jurors as to the identity of the victim or theory. See e.g., State v. Gentry, 183 N.J. 30, 32-33 (2005); State v. Frisby, 174 N.J. 583, 599-600 (2002). The authorities relied upon by defendant are plainly distinguishable. The legal theory underlying defendant's conviction for using either juvenile was the same. Further, neither of the juveniles here were victims so that the commission of the crime did not depend upon the identification of a particular victim.

As defendant implicitly concedes, the State was not required to prove that defendant used two juveniles to commit a crime to satisfy this element. Proof that he used either one was sufficient. Therefore, by instructing the jury that the State had to prove the involvement of both juveniles, the court delivered an instruction that favored defendant by placing a higher burden of proof upon the State. Such an instruction plainly lacked "a clear capacity to bring about an unjust result."

As conceded by the State, defendant's conviction for conspiracy should have been merged into his conviction for armed robbery. See State v. Hardison, 99 N.J. 379, 386 (1985). A remand is therefore necessary.

Finally, defendant challenges his sentence as manifestly excessive. The standard of review is one of deference. To be accorded such deference, the sentencing court is required to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); N.J.S.A. 2C:43-2(e); R. 3:21-4(g). Even if the appellate court would have reached a different result, it must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." O'Donnell, supra, 117 N.J. at 215.

In sentencing defendant, the court found three aggravating factors, N.J.S.A. 2C:44-1(a)(3) (risk that the defendant will commit another offense), N.J.S.A. 2C:44-1(a)(6) (extent of the defendant's prior criminal record and seriousness of offenses),

and N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others),

and no mitigating factors under N.J.S.A. 2C:44-1(b). Defendant has not identified any aggravating factor that was not supported by the credible evidence or any mitigating factor that the court erroneously failed to find applicable. The thrust of his argument is that this was not an especially egregious armed robbery and that the court failed to conduct an appropriate analysis of the factors set forth in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), in sentencing defendant to consecutive terms.

Aside from identifying the aggravating factors found, the court did not explain what facts were relied upon to

support the application of the aggravating factors and did not balance the factors or explain how the factors led to the sentences imposed. In addition, the court did not review the criteria established in Yarbough to determine the appropriateness of either a consecutive or concurrent sentence. Instead, the court explained its reason for imposing a consecutive sentence as follows:

The reason I'm imposing the consecutive term is that you may have also employed two juveniles but you also had an eighteen year old that had never been in trouble before who had just turned eighteen and in my mind was basically still a juvenile and you basically ruined her life for the rest of her life because now she's serving a term [of] seven years with eighty five percent in state prison for somebody that had never been in trouble before and but for your actions and your persuasions, probably would never have ever been involved in anything like this before.

 

I find that act to require that it be run consecutive. I consider that a multiple victim crime. . . . As I said you have from your actions through this one robbery, ruined a lot of people's lives.

 

[(Emphasis added.)]

Thus, the sole basis given by the court for the imposition of consecutive sentences was its view that this was a multiple victim crime.

The fact that there are multiple victims is one of the offense-related factors identified in Yarbough for consideration in determining whether to impose consecutive sentences. Ibid. This factor is generally applied in cases in which there are multiple victims of the crime for which defendant was convicted and/or multiple acts of violence. See, e.g., State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). As our Supreme Court held in a vehicular homicide case, "the multiple-victims factor is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms when multiple deaths or serious bodily injuries have been inflicted upon multiple victims by the defendant." State v. Carey, 168 N.J. 413, 429-30 (2001). However, the "multiple victim" factor identified in Yarbough was inapplicable here.

The only offenses against a person for which defendant was convicted involved the robbery, the victim of which was Antonio De la Cruz. As we have stated, T.T. and L.G. were not victims of the crimes committed by defendant. They were his accomplices, as was his co-defendant, Dafne Abad. It was error for the court to consider Dafne a victim and to consider that there were "multiple victims" as that factor is considered in Yarbough for determining the appropriateness of a consecutive sentence.

Moreover, reliance upon the fact that defendant employed juveniles amounted to improper double-counting of an element of an offense for which he was convicted, using a juvenile in the commission of a crime. When a fact is included among the aggravating factors identified in N.J.S.A. 2C:44-1(a), it may not be considered as an aggravating factor for sentencing purposes in any case. See Carey, supra, 168 N.J. at 425; State v. Pineda, 119 N.J. 621, 627 (1990); Yarbough, supra, 100 N.J. at 633; State v. Pavin, 202 N.J. Super. 255, 266-67 (App. Div. 1985). It follows that an essential element of an offense for which defendant was convicted is similarly unavailable to justify consecutive sentencing. See State v. Miller, 108 N.J. 112, 122 (1987) ("[F]actors invoked by the Legislature to establish the degree of the crime should not be double counted when calculating the length of sentence. Similarly, factors relied on to sentence a defendant to the maximum term for each offense should not be used again to justify imposing those sentences consecutively." (citation omitted)).

Where, as here, the court has failed to articulate cognizable reasons for the imposition of a consecutive sentence, a remand is necessary. See State v. Gallagher, 286 N.J. Super. 1, 22 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996). On remand, the court should review the criteria established in Yarbough to determine the appropriateness of either a consecutive or concurrent sentence. In addition, the court should explain what facts are relied upon to support the application of the aggravating factors, balance the factors and explain how the factors lead to the sentences imposed, focusing on the overall fairness of the sentence itself, State v. Miller, 108 N.J. 112, 122 (1987); State v. Candelaria, 311 N.J. Super. 437, 453 (App. Div.), certif. denied, 155 N.J. 587 (1998); and explain its reasons in the event a consecutive sentence is imposed.

We affirm defendant's convictions and remand for resentencing. We do not retain jurisdiction.

1 Counts five and seven, which charged defendant with receiving stolen property, N.J.S.A. 2C:20-7, and certain persons not to have weapons, N.J.S.A. 2C:39-7(b), were dismissed before trial.