STATE OF NEW JERSEY v. LUIS R. FIGUEROA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6437-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS R. FIGUEROA,

Defendant-Appellant.

________________________________

March 2, 2011

 

Submitted February 9, 2011 - Decided

 

Before Judges Sapp-Peterson and Simonelli.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-06-0371.

 

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

 

GeoffreyD. Soriano,Somerset County Prosecutor, attorney for respondent (James L.McConnell, AssistantProsecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Luis Figueroa was convicted of second-degree robbery, N.J.S.A. 2C:15-1. The trial judge subsequently found defendant guilty of resisting arrest, N.J.S.A. 2C:29-1a(1), a disorderly persons offense. The charges stemmed from defendant's fight with a Stop & Shop store manager while attempting to leave the store without paying for merchandise. The judge sentenced defendant to an eight-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery charge, and to a concurrent six months in the county jail on the resisting arrest charge. We affirm defendant's conviction and sentence, reverse the imposition of a $200 Violent Crimes Compensation Board (VCCB) assessment for the disorderly persons conviction, and remand for the entry of a corrected judgment of conviction to reduce the VCCB assessment to $50.

At approximately 9:00 p.m. on May 5, 2008, Stop & Shop store manager Michael Chen saw defendant place a package of batteries in his jacket pocket. Defendant also had a shopping basket containing several packages of batteries. Defendant walked through a self-checkout lane without paying for the batteries. Defendant attempted to run from the store after Chen confronted him about his failure to pay for the merchandise. Chen grabbed defendant and a fight ensued. Defendant kicked Chen three times in the groin area, causing Chen pain. During the fight, approximately twelve to thirteen packages of batteries, valued at $120, fell to the floor from the shopping basket and defendant's jacket pocket. Defendant then fled and was apprehended by the police outside the store. The incident was captured on videotape, which was played to the jury.

Police Officer Scott Anderle of the Watchung Police Department responded to the Stop & Shop. He saw defendant exit the store and ordered him to stop. Defendant stopped, faced the officer, turned and briskly walked away, and ignored several more commands to stop. Anderle then grabbed defendant's right hand, placed him against a wall, and attempted to handcuff him; however, defendant resisted. Defendant continued resisting after the officer took him to the ground to handcuff him.

It is against these facts that defendant raises the following contentions for our consideration:

POINT I

THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN HE FAILED TO CHARGE THE JURY ON "ATTEMPT" BECAUSE AN ATTEMPTED THEFT FORMED THE BASIS FOR THE ROBBERY CHARGE

 

POINT II

THE JUDGE'S CHARGE REGARDING LESSER-INCLUDED OFFENSES IMPROPERLY SUGGESTED THAT SUCH OFFENSES WERE NOT OF EQUAL WEIGHT TO THE ROBBERY CHARGED IN THE INDICTMENT

 

POINT III

THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT CREATED THE IMPRESSION THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT

 

POINT IV

BECAUSE THIS ROBBERY WAS LESS SERIOUS THAN OTHERS IN ITS CLASS, THE COURT ERRED IN IMPOSING A SENTENCE IN EXCESS OF THE MID- POINT OF THE SENTENCING RANGE

 

POINT V

THE VIOLENT CRIMES COMPENSATION BOARD PENALTY ON THE DISORDERLY PERSONS OFFENSE MUST BE REDUCED TO $50.00

 

Defendant's contentions in Points I, II and III, raised for the first time on appeal, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make these brief comments.

The evidence did not require the judge to define the elements of criminal attempt in the robbery instruction, as defendant argues in Point I. This case did not involve an attempted theft it involved an actual theft, which was completed when defendant walked through the self-checkout lane without paying for the batteries. By doing so, defendant unlawfully exercised control over Stop & Shop's batteries with the purpose to deprive the store thereof. N.J.S.A. 2C:20-3a; State v. McCoy, 116 N.J. 293, 298-99 (1989). We reject defendant's claim that he renounced his purpose to commit theft when he dropped the shopping basket. Defendant still had the batteries in the shopping basket and in his jacket pocket, which had not fallen to the floor until after he began fighting with Chen.

The judge's charge on lesser-included offenses was not improper, as defendant contends in Point II. The judge followed the Model Jury Charge for lesser-included offenses, and did not rephrase or make any additions that could be construed in any way as prejudicial. See State v. Angoy, 329 N.J. Super. 79, 84 (App. Div.), certif. denied, 165 N.J. 138 (2000) (holding that a charge that conformed to the Model Jury Charge was adequate).

The judge's charge on defendant's exercise of his right to remain silent at trial did not have the clear capacity to produce an unjust result, as defendant contends in Point III. First, defendant requested the charge given. "'Trial errors which were induced, encouraged, or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[.]'" State v. Harvey, 151 N.J. 117, 219 (1997), (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)); cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000); see also State v. Marshall, 123 N.J. 1, 83 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Also, the charge mirrored the Model Jury Charge that was in effect at the time of defendant's trial in 2008. See Model Jury Charge (Criminal), "Dependent's Election Not to Testify" (2004).

We now address defendant's contention in Point IV that the judge erred in imposing a sentence in excess of the mid-point for a second-degree crime. Defendant contends this robbery was less serious than others in its class, i.e., it was merely a minor theft or shoplifting offense committed while he was intoxicated, Chen suffered no serious injury, the store suffered no economic loss, and the batteries were of minimal value. Defendant also argues the judge failed to consider mitigating factors N.J.S.A. 2C:44-1b(1) ("[t]he defendant's conduct neither caused nor threatened serious harm"), N.J.S.A. 2C:44-1b(2) ("[t]he defendant did not contemplate that his conduct would cause or threaten serious harm"), and N.J.S.A. 2C:44-1b(11) ("[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents").

"A person is guilty of robbery if, in the course of committing a theft, he . . . [t]hreatens another with or purposely puts him in fear of immediate bodily injury . . . . " N.J.S.A. 2C:15-1a(2). Defendant threatened Chen with immediate bodily injury. Actual injury or pain to Chen, the lack of economic loss to the store, or the value of the items stolen, are not elements of the offense.

Mitigating factors N.J.S.A. 2C:44-1b(1) and (2) are not amply supported by competent credible evidence in the record. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Dalziel, 182 N.J. 494, 504-05 (2005). Rather, by its very nature, second-degree robbery is a crime where serious harm is either caused or threatened. Defendant threatened Chen with serious harm by fighting with and kicking him several times in the groin area.

The record also does not support mitigating factor N.J.S.A. 2C:44-1b(11). There is no evidence that defendant had custody of his children, or that his imprisonment would cause them "excessive" hardship. See State v. Mirakaj, 268 N.J. Super. 48, 51 (App. Div. 1993).

In Point V, defendant contends, and the State agrees, as do we, that the VCCB assessment of $200 for the disorderly persons offense is excessive and must be reduced to $50.

Affirmed in part, reversed in part, and remanded for correction of the judgment of conviction consistent with this opinion.