STATE OF NEW JERSEY v. KAREEM LAMAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5123-07T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KAREEM LAMAR,

Defendant-Appellant.

______________________________________________________

March 4, 2011

Submitted February 15, 2011 - Decided

Before Judges Parrillo and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment

No. 07-08-1934.

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

Paula T. Dow, Attorney General, attorney for respondent (Ashlea D. Thomas, Special Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty of second-degree robbery, in violation of N.J.S.A. 2C:15-1(a)(1). The trial court granted the State's motion to sentence defendant as a persistent offender under N.J.S.A. 2C:44-3(a), and imposed an extended term of eighteen years imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The robbery occurred in the afternoon of June 7, 2007 in the Hilton Casino in Atlantic City. The victim of the robbery was a casino cashier, Muhammed Ali, who was responsible for paying out jackpots, providing cash redemptions for vouchers and coupons, and handling various other transactions involving cash payoffs. Ali conducted these transactions through a window at the front of the booth in which he worked. He gained entry to the booth through a wooden door.

In response to a knock, Ali opened the door and saw defendant, who asked, "bathroom?" Ali told defendant the booth was not the bathroom. Defendant then pulled the door open, entered the booth, punched Ali, and said, "give me the money." Ali pushed an alarm button. Seeing Ali do this, defendant said, "I'm getting out of here," ran out of the booth, and left the area. Defendant, who was identified from a surveillance camera videotape of the incident wearing distinctive clothing, specifically a Philadelphia Seventy-Sixers jersey with the number six on it, was apprehended in another casino a few hours later.

In addition to the testimony of Ali, the State Police detective who investigated the robbery, and the casino employees who operated the casino surveillance cameras, the State introduced a composite videotape from the surveillance cameras that showed defendant's movements before, during and after the robbery.

Defendant took the stand in his own defense and admitted he entered the booth where Ali worked. However, defendant claimed that he entered the booth by mistake, thinking that it was a bathroom, and denied punching Ali or demanding that Ali give him money. Defendant testified that his only physical interaction with Ali occurred when Ali pushed him out of the booth.

Based on this evidence, the jury found defendant guilty of robbery.

On appeal, defendant presents the following arguments:

POINT ONE:

THE JUDGE GAVE AN INCOMPLETE ROBBERY CHARGE, WHICH MISLED THE JURY INTO BELIEVING THAT THE PROOFS REQUIRED TO ESTABLISH ATTEMPTED THEFT AS AN ELEMENT OF ROBBERY WERE LESS DEMANDING THAN THE PROOFS REQUIRED TO ESTABLISH ATTEMPTED THEFT AS A LESSER-INCLUDED OFFENSE OF ROBBERY, AND WHICH FAILED TO PROVIDE AN ADEQUATE ROADMAP FOR THE JURY TO DETERMINE WHETHER [DEFENDANT'S] USE OF FORCE OCCURRED DURING THE COMMISSION OF AN ATTEMPTED THEFT. (Not Raised Below).

POINT TWO:

IN ANSWERING ONE OF THE JURY'S QUESTIONS, THE JUDGE MISSTATED PART OF THE RECORD THAT WAS CRITICAL TO [DEFENDANT'S] DEFENSE. THIS ERROR WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT. (Not Raised Below).

POINT THREE:

THE 18-YEAR EXTENDED TERM SENTENCE THAT THE JUDGE IMPOSED WAS EXCESSIVE AND BASED ON INAPPROPRIATE FACTORS.

The only one of these arguments that warrants discussion is that the trial court failed to give an instruction on the law of attempt as part of its instructions regarding robbery.

The part of the robbery statute under which defendant was charged provides: "A person is guilty of robbery if, in the course of committing a theft, he . . . uses force upon another." N.J.S.A. 2C:15-1(a)(1). "An act shall be deemed to be included in the phrase 'in the course of committing a theft' if it occurs in an attempt to commit a theft or in immediate flight after the attempt or commission." N.J.S.A. 2C:15-1(a).

The State did not present evidence that defendant actually took any cash or other property from the casino booth. Thus, the State's theory of the case was that defendant committed a robbery by using force upon Ali while in the course of attempting to commit a theft of property in the booth. In such a case, an instruction regarding the law of attempt is a required component of a robbery instruction. State v. Gonzalez, 318 N.J. Super. 527, 532-37 (App. Div.), certif. denied, 161 N.J. 148 (1999).

In its initial instructions, the trial court gave the following description of the offense of robbery:

A person is guilty of robbery if, in the course of committing a theft, he knowingly inflicts bodily injury or uses force upon another. In order for you to find the Defendant guilty of robbery, the State is required to prove the following, beyond a reasonable doubt.

One, the Defendant was in the course of committing a theft.

Two, while in the course of committing the theft, the Defendant inflicted -- knowingly inflicted bodily injury or used force on another.

The State must prove, beyond a reasonable doubt, the Defendant was in the course of committing a theft. In this connection you're advised that an act's considered to be in the course of committing a theft if it occurs in an attempt to commit the theft, during the commission of the theft itself or in the immediate flight after the attempt or commission.

Thus, the court informed the jury that the theft element of robbery could be established by evidence of an attempt to commit theft but failed to provide any description of the elements of an attempt to commit an offense.

However, the trial court gave an instruction regarding the elements of attempt in instructing the jury regarding the lesser-included offense of attempted theft:

[O]f an attempt to commit theft, two things have to be proved to be found -- to tie in the attempt to the theft.

First, the Defendant had the purpose to commit the crime of theft. A Defendant acts purposely, with respect to the nature of his conduct or result thereof, if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely, with respect to attendant circumstances, if he is aware of the existence of such circumstances or he believes or hopes they exist.

Second element is that the Defendant purposely did something which under the circumstances, as a reasonable person were to believe them to be, was an act that was a substantial step in the course of conduct planned to culminate in his commission of the crime of theft. However, the step taken must strongly show the Defendant's criminal purpose. That is, the step taken must be substantial and not just a very remote preparatory act and must show that the accused had a firmness of criminal purpose to commit the theft.

Now, if you find that the State has proved each of those two elements, beyond a reasonable doubt, you find the Defendant guilty of an attempt to commit theft and I'll give you the elements of theft in a moment.

Defendant does not dispute that this constituted an adequate instruction regarding the law of attempt as it relates to attempted theft.

We have previously recognized that a trial court's failure to give the jury an instruction on the law of attempt as part of its instructions regarding robbery will not be found to be plain error if the court explained the law of attempt in another part of its instructions. In State v. Smith, 322 N.J. Super. 385, 398-400 (App. Div.), certif. denied, 162 N.J. 489 (1999), as in this case, the court failed to include an explanation of the elements of an attempt in its robbery instruction, but provided the jury such a description with respect to another offense, in that case a charge of an attempt to sell a weapon. Id. at 399. The court concluded that the omission of any explanation of the law of attempt as part of the instructions regarding robbery, "considered in the context of the entire charge," including the explanation of the law of attempt in connection with another offense, did not constitute plain error and affirmed the defendant's conviction. Id. at 400.

We reach the same conclusion in this case. The trial court gave the jury a complete instruction regarding the elements of an attempt, but did so with respect to the lesser included offense of attempted theft rather than the robbery charge. We do not believe the jury would have understood this attempt instruction to be inapplicable to the attempted theft element of robbery.

Furthermore, even if the court's initial instructions could have left some uncertainty in the minds of the jury regarding the applicability of this instruction on the law of attempt to the robbery charge, that uncertainty would have been eliminated by the court's supplemental instructions in response to questions from the jury. In response to one question, the court gave the following reinstruction regarding the robbery charge:

All right, ladies and gentlemen, your question is: If nothing is taken, can robbery still be charged? The short answer to that is yes. And the portion of the charge that addresses that is when I read to you the State must prove, beyond a reasonable doubt, Defendant was in the course of committing a theft. And I said, in this connection, you are advised that an act's considered to be quote in the course of committing a theft unquote if it occurs in an attempt to commit the theft, during the commission of the theft or in the immediate flight after the attempt or commission.

So the attempt of a robbery is sufficient to satisfy that and then the two parts of the attempt that I told you that Defendant acts purposely, with respect to the nature of his conduct, the result thereof, if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely, with respect to the attendant circumstances, if he's aware of the existence of the circumstances or believes or hope they exist.

And the next element is that Defendant purposely did something under the circumstances a reasonable person would believe them to be is an act that is a substantial step in the course of conduct planned to culminate in the commission of the crime. The step must strongly show the Defendant's criminal purpose. That is, the step must be substantial and not just a very remote, preparatory act and must show that the accused has a firmness of criminal purpose.

Thus, even though the court's initial instructions omitted an instruction on the law of attempt in describing the elements of robbery, this reinstruction specifically described the elements of attempt in explaining the attempted theft element of robbery. In a later colloquy with the jury, the court again alluded to the applicability of the law of attempt to the robbery charge:

So as far as the definitions of the law of robbery I gave that to you two or three times now. I told you that an act in this State, the State must prove that the Defendant was in the course of committing a theft and that the definition of in the course of committing a theft includes if it occurs in an attempt. I gave you the law on attempt.

Therefore, we conclude that considering the jury instructions, including the reinstructions, as a whole, the court provided an adequate explanation of the attempted theft element of robbery.

Defendant's other arguments are clearly without merit. R. 2:11-3(e)(2). We only note, with respect to defendant's argument that his sentence was excessive, that over a period of twenty-five years before this offense defendant was convicted of twelve prior indictable offenses, including robbery, aggravated assault, resisting arrest, and possession of a weapon for an unlawful purpose, for which he had been incarcerated for a substantial part of his adult life.

Affirmed.