STATE OF NEW JERSEY v. JAMEEL ROLLINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-2492-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMEEL ROLLINS,

Defendant-Appellant.

______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EMMANUEL PIERREVIL,

Defendant-Appellant.

___________________________________________________________

August 19, 2014

 

Submitted April 8, 2014 Decided

 

Before Judges Messano and Lisa.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-01-0262.

 

Joseph E. Krakora, Public Defender, attorney for appellant Jameel Rollins (Alison Perrone, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant Emmanuel Pierrevil (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).

 

Appellant Jameel Rollins filed a pro se supplemental brief.

 

Appellant Emmanuel Pierrevil filed a pro se supplemental brief.

PER CURIAM

 

Co-defendants Jameel Rollins and Emmanuel Pierrevil appeal from the judgments of conviction and sentences imposed following a jury trial that lasted several weeks. We consolidated the two appeals for the purpose of issuing a single opinion.

At trial, the court accepted the jury's partial verdict that found defendants guilty of second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-2 (count two); second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b)(1) (count four); second-degree eluding, N.J.S.A. 2C:29-2(b) (count eight as to Pierrevil and count nine as to Rollins); two counts of second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (counts eleven and fifteen); two counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts twelve and sixteen); two counts of third-degree receiving stolen property, N.J.S.A. 2C:20-7 (counts seventeen and eighteen); and two counts of third-degree resisting arrest by creating a risk of physical injury, N.J.S.A. 2C:29-2(a)(3)(b) (count nineteen as to Rollins and count twenty as to Pierrevil). The jury additionally found Rollins guilty of second-degree aggravated assault, causing or attempting to cause serious bodily injury ("SBI assault") to Mr. Jean-Mary, N.J.S.A. 2C:12-1(b)(1) (count ten). The jury could not reach a verdict on the remaining counts.

Count three of the indictment charged both defendants with second-degree SBI assault of Mr. Mann. When the jury advised that it could not reach a unanimous verdict on this count, its foreman also advised that it had not considered the lesser-included assault offenses for which the judge had provided instructions. The judge accepted the partial verdict, but sent the jury back to deliberate on the lesser-included offenses under count three. After a brief period of further deliberations, the jury advised that it could not reach a unanimous verdict on the lesser-included offenses. We discuss the sentences imposed upon defendants more fully below.1

Before us, Rollins raises the following arguments:

POINT ONE

DEFENDANT'S CONVICTIONS MUST BE VACATED AND THE MATTER REMANDED FOR A NEW TRIAL BECAUSE DEFENDANT SUSTAINED HIS BURDEN OF PROVING THAT THE STATE EXERCISED PEREMPTORY CHALLENGES TO EXCLUDE POTENTIAL JURORS ON THE BASIS OF RACE

POINT TWO

MARRANCA'S INDENTIFICATION OF DEFENDANT SHOULD HAVE BEEN SUPPRESSED BECAUSE THE IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE AND RESULTED IN A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION

POINT THREE

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN AGGREGATE TERM OF [FORTY] YEARS WITH [THIRTY AND ONE-HALF] YEARS OF PAROLE INELIGIBILITY BECAUSE A PROPER ANALYSIS OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE

POINT FOUR

UNDER STATE V. YARBOUGH, 100 N.J. 627 (1985), CERT. DENIED, 475 U.S. 1014[, 106 S. Ct. 1193, 89 L. Ed. 2d 308] (1986), THE DEFENDANT SHOULD NOT HAVE RECEIVED THREE CONSECUTIVE SENTENCES

In a pro se supplemental brief, defendant argues:

POINT ONE

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT[']S MOTION FOR JUDGMENT OF ACQUITTAL ON AGGRAVATED[] ASSAULT AND OR THE STATE FAILED TO PROVE THE ELEMENT OF SERIOUS BODILY INJURY. THE STATE DID NOT PROVIDE THE DEFENSE WITH ANY MEDICAL RECORDS TO SUPPORT THE VICTIM [MR.] JEAN-MARY['S] ALLEGATION THE HE SPRAINED HIS BACK AND NECK, AND ALSO HE ALLEGEDLY HAD SUFFERED TWO HERNIATED DISCS IN HIS BACK FROM THE ACCIDENT CAUSED BY DEFENDANT. THERE WAS NO EVIDENCE PRESENTED IN THE RECORD TO SUBSTANTIATE THESE INJURIES THE VICTIM TESTIFIED TO ON DIRECT EXAMINATION

(A) DEFENDANT SUFFERED PREJUDICE FROM THE ABOVE VIOLATION WHEN THE COURT FAILED TO HOLD THE CHARGE CONFERENCE ON THE RECORD, MEMORIALIZING ONLY A LIST OF THE FINAL CHARGES, THUS, VIOLATING THE DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL

 

POINT TWO

 

THE COURT ERRED IN TAKING A FINAL PARTIAL VERDICT AND THEN SENDING THE JURORS BACK TO CONSIDER LESSER-INCLUDED OFFENSES THAT HAD BEEN SKIPPED IN DELIBERATIONS

 

POINT THREE

 

THE STATE PRESENTED INSUFFICIENT EVIDENCE TO PROVE A CONSPIRACY TO CARJACK

Pierrevil raises the following points for our consideration:

POINT I

THE PROSECUTION'S USE OF PEREMPTORY CHALLENGES TO REMOVE AFRICAN-AMERICAN MEMBERS OF THE JURY PANEL VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY

POINT II

THE COURT ERRED IN TAKING A FINAL PARTIAL VERDICT AND THEN SENDING THE JURORS BACK TO CONSIDER LESSER-INCLUDED OFFENSES THAT HAD BEEN SKIPPED IN DELIBERATIONS

POINT III

THE COURT FAILED TO HOLD THE CHARGE CONFERENCE ON THE RECORD, MEMORIALIZING ONLY A LIST OF THE FINAL CHARGES, THUS, VIOLATING THE DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL (Not Raised Below)

POINT IV

THE DEFENDANT'S EXTENDED TERM SENTENCE OF [FORTY] YEARS WITH A [TWENTY-SEVEN] YEAR PAROLE BAR WAS MANIFESTLY EXCESSIVE

In a supplemental pro se brief, defendant also contends:

POINT I

TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE CONSPIRACY TO COMMIT CARJACKING COUNT

We have considered these arguments in light of the record and applicable legal standards. We affirm the judgment of conviction and sentences imposed upon Pierrevil. As to Rollins, we reverse the conviction on count ten, the SBI aggravated assault of Jean-Mary, vacate the sentence imposed on that count, and remand the matter to the Law Division for further proceedings. In all other respects, we affirm the judgment of conviction and sentences imposed on Rollins.

I.

Just before noon on October 15, 2008, Mann was about to enter his BMW parked near his mother's home in Newark. Two men with ski masks approached carrying guns, and a third waited behind in a silver Lexus that "boxed in" Mann's BMW. Mann's mother returned home from grocery shopping to find the men "tussling" with her son. One of the men pointed a gun at her, and Mann continued to struggle with another, who twice struck him on the head with a gun.

Mann believed that the men intended to force him into the Lexus, and his mother confirmed that she heard the men order him to "[g]et the fuck in the car." Mann was able to break free and ran as the assailants fired several shots at him, all of which missed. The men drove off in the Lexus and Mann's BMW. A surveillance video from a nearby school captured much of these events and was shown to the jury at trial. Mann was later treated for a head wound requiring eight to ten stitches.

Sergeant Justin Marranca of the Union County Prosecutor's Office was driving along Routes 1 and 9 in Newark in an unmarked vehicle, when he heard a radio transmission describing the two cars. He spotted both traveling in tandem, about two hundred yards ahead, and began pursuing them. Apparently alerted to Marranca's presence, the cars began to rapidly accelerate. Marranca activated his lights and siren and followed as the cars entered an industrial area off Broadway in Jersey City.

As Marranca exited his vehicle and approached with his gun drawn, the cars quickly turned and headed toward him with the Lexus in the lead. Marranca aimed his gun at the unmasked driver of the Lexus as the car passed. Both vehicles swerved to avoid hitting Marranca as they sped out of the lot. Before the jury, Marranca identified Rollins as the driver of the Lexus.

Marranca continued to pursue the vehicles as they headed back toward Routes 1 and 9, but he eventually lost track of the Lexus. During the chase, both cars traveled at speeds of seventy miles per hour, weaved among lanes, and crossed into oncoming traffic. The BMW crashed, and Pierrevil was arrested as he tried to escape on foot. Two witnesses testified to seeing him toss a gun on top of a nearby building.

Shortly thereafter, the Lexus crashed into a vehicle driven by Jean-Mary. Officer Robert Turkowsky of the Kearny Police Department saw Rollins and another man escape from the front driver's side door of the Lexus. As he fled, Rollins threw an object into the river and was arrested after falling down a hill. The other man escaped and was never identified. Police later confirmed that the Lexus was reported stolen, and its owner so testified at trial.

Police also found a loaded .40 caliber handgun on the front seat of the Lexus, and a loaded .45 caliber Ruger handgun on the rooftop where witnesses had observed Pierrevil throw the weapon. Although no fingerprints were found on either gun, the State's ballistics expert opined that three spent .45 caliber shell casings found near Mann's mother's house were fired from the Ruger found on the roof.2 It was stipulated at trial that neither defendant had a permit to carry a handgun.

Neither defendant testified, and no defense witnesses were called.

II.

During the third week of jury selection, defendants objected after the prosecutor exercised his first four peremptory challenges to remove African-American women from the jury. At that point, the seated jury included four African-American jurors out of sixteen. Concluding that defendants had demonstrated prima facie conduct by the prosecutor to exclude jurors based upon their race, the judge required the prosecutor to explain his decision to utilize the challenges.

The prosecutor explained his reasons for excusing all four jurors, noting that he believed one was not African-American and another was noticeably pregnant. The judge concluded that "[n]one of the reasons the prosecutor ha[d] given [we]re suggestive that these challenges were for any improper reason." Indeed, the judge agreed that one of the jurors was not African-American, and he voiced concerns that the pregnant juror would be uncomfortable, since jury selection had already extended for three weeks, and the trial itself was likely to be quite long.

The judge revisited the issue when the prosecutor next requested that an African-American male juror be excused for cause, explaining the juror's responses to voir dire questions were "fantastical," shifting and designed to satisfy counsel rather than to provide honest information. The judge declined to excuse the juror for cause, so the prosecutor exercised another peremptory challenge. At sidebar, the judge again reviewed the prosecutor's reasons for exercising the challenge, and noted that the juror's answers perhaps reflected negatively on his ability to fairly evaluate the testimony.

The following day, the prosecutor told the judge that a criminal background search conducted on one of the empaneled jurors, an African-American woman, revealed a prior arrest, but no conviction, for possession of a controlled dangerous substance. The juror had stated during voir dire that she had never been accused of any criminal offense. The prosecutor requested that she be stricken for cause.

Defense counsel renewed their objections and moved to strike the empaneled jury and the remaining venire, or dismiss the indictment.3 The judge denied the motions, and, after questioning the juror, concluded she had been arrested and had not honestly answered the voir dire questions. He struck her for cause.

Before us, both defendants argue that the prosecutor improperly used his peremptory challenges to exclude potential jurors from the panel on the basis of race.4 We disagree.

The State's use of peremptory challenges to exclude potential jurors on the basis of race violates the federal and State constitutional rights of a criminal defendant. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); State v. Gilmore, 103 N.J. 508, 521-24 (1986). The Court has adopted "a three-step process [that] must be employed whenever it has been asserted that a party has exercised peremptory challenges based on race or ethnicity." State v. Osorio, 199 N.J. 486, 492 (2009).

Step one requires that, as a threshold matter, the party contesting the exercise of a peremptory challenge must make a prima facie showing that the peremptory challenge was exercised on the basis of race or ethnicity. That burden is slight, as the challenger need only tender sufficient proofs to raise an inference of discrimination. If that burden is met, step two is triggered, and the burden then shifts to the party exercising the peremptory challenge to prove a race- or ethnicity-neutral basis supporting the peremptory challenge. In gauging whether the party exercising the peremptory challenge has acted constitutionally, the trial court must ascertain whether that party has presented a reasoned, neutral basis for the challenge or if the explanations tendered are pretext. Once that analysis is completed, the third step is triggered, requiring that the trial court weigh the proofs adduced in step one against those presented in step two and determine whether, by a preponderance of the evidence, the party contesting the exercise of a peremptory challenge has proven that the contested peremptory challenge was exercised on unconstitutionally impermissible grounds of presumed group bias.

[Id. at 492-93.]

The judge must make specific findings as to the reasons for each challenge, and whether the challenges were exercised on improper grounds. State v. Clark, 316 N.J. Super. 462, 473 (App. Div. 1998), appeal after remand, 324 N.J. Super. 558 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). On review, we accord "substantial deference" to the trial court's findings of fact in this regard. Ibid.

Here, the judge promptly scrutinized the contested peremptory challenges, made the requisite particularized findings of fact, and reached his conclusions, having had the unique opportunity to observe the circumstances first-hand. To be sure, the judge may have frequently stated that the prosecutor's proffered reasons were "race neutral." Defendants correctly point out that the proper inquiry is not merely whether the reasons were facially neutral, but rather whether a defendant has demonstrated a likelihood that those facially neutral reasons are pretextual. Gilmore, supra, 103 N.J. at 538. However, a thorough review of the entire record convinces us that the judge properly applied the three-part Osorio test, including the critical weighing process in stage three, and we find no basis to overturn defendants' convictions on these grounds.

 

III.

We turn to the arguments raised regarding the trial itself.

A.

Marranca testified at a pre-trial Wade5 hearing that, after pursuing the two vehicles into the parking lot in Jersey City and exiting his car, he was able to clearly observe the driver of the Lexus, both through the windshield and then through the rolled-down front passenger window, as the car sped past him. When he later discovered that the Lexus had crashed, Marranca inquired as to the identifying information, including the name and date of birth of the individual who was arrested following the accident. Marranca testified that he needed the information to complete his file. In the course of doing so, Marranca, who had never seen Rollins before, saw a photograph of Rollins in a criminal history report and immediately recognized him as the driver of the Lexus.

The judge found Marranca to be credible and determined that the out-of-court identification procedure, by the "very nature of viewing one photo[, wa]s obviously suggestive." Noting the circumstances under which Marranca first saw Rollins' photo, the judge concluded the procedure was "more akin to a show-up rather than a traditional photo array . . . shown to a witness to see if they can identify . . . the perpetrator . . . ." See State v. Herrera, 187 N.J. 493, 504 (2006) (recognizing that "one-on-one show[-]ups are inherently suggestive[,]" because "the victim can only choose from one person, and, generally, that person is in police custody"). The judge considered all of the circumstances regarding Marranca's ability to view Rollins as he sped by, and concluded that the out-of-court identification and subsequent in-court identification of Rollins by Marranca were reliable despite the suggestive nature of the out-of-court identification procedure.

Rollins contends that the judge should have suppressed Marranca's identification of him because the identification procedure was impermissibly suggestive and created a substantial likelihood of misidentification. We disagree, but, even if the judge erred in admitting Marranca's testimony regarding his identification of Rollins as the driver of the Lexus, the error was harmless beyond a reasonable doubt. See State v. Lazo, 209 N.J. 9, 26 (2012) ("The harmless error standard requires that there be some degree of possibility that the error led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether it led the jury to a verdict it otherwise might not have reached." (quotation omitted)).

Undoubtedly, the Court's opinion in State v. Henderson, 208 N.J. 208 (2011), altered the landscape regarding the admissibility of identification evidence in New Jersey. However, Henderson was decided after the trial in this case, and the Court limited its holding to "future cases only." Id. at 302. As a result, we assess the judge's decision in this case under the then-existing controlling precedent, specifically, State v. Madison, 109 N.J. 223 (1988). See State v. Micelli, 215 N.J. 284, 287 (2013) ("The Madison standard applies . . . because the out-of-court identifications were completed prior to [the Court's] . . . decision in [Henderson]").

The Madison Court adopted "essentially verbatim" the United States Supreme Court standard articulated in in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977). Micelli, supra, 215 N.J. at 290. "Pursuant to the Manson/Madison test, the process of determining whether an out-of-court identification is admissible at trial consists of two steps." Id. at 291.

First, the judge must determine whether the out-of-court procedure was "impermissibly suggestive." Ibid. (citation omitted). Then,

[i]f there is a finding of impermissible suggestiveness, the court must determine whether the objectionable procedure resulted in a very substantial likelihood of irreparable misidentification. To make that assessment, the judge must analyze the reliability of the identification by considering the totality of the circumstances and weighing the suggestive nature of the procedure against the reliability of the identification. The evidence may be admitted at trial if the judge finds that the identification procedure was nevertheless reliable despite the impermissibly suggestive procedure used.

[Ibid. (citations omitted)]

 

The Court has recognized certain factors to consider in determining reliability.

[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

[Herrera, supra, 187 N.J. at 503 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).]

Here, the judge carefully considered Marranca's testimony. Marranca testified that his view of the driver of the Lexus was brief but clear. He recalled that the passenger in the car had pulled his shirt up over his face to avoid detection, but the driver had not. As he aimed his weapon, Marranca's only focus at that moment was the driver of the vehicle. Lastly, Marranca exhibited a high level of certainty when he first saw Rollins' photo, less than twenty-four hours after the incident. We find no basis to disturb the trial judge's findings and conclusions regarding the out-of-court identification and subsequent in-court identification.

Even if we were wrong in our assessment, the admission of Marranca's identification testimony was harmless beyond a reasonable doubt. Turkowsky observed Rollins exit the driver's side of the car just prior to his arrest, and the officer identified Rollins in court before the jury.

B.

After the State rested, both defendants moved for a judgment of acquittal on all counts of the indictment. The judge denied the motions, concluding without reference to any particular charge that the State had presented sufficient evidence to permit a reasonable jury to find guilt beyond a reasonable doubt. See State v. Reyes, 50 N.J. 454, 459 (1967). Both defendants now contend that they were entitled to a judgment of acquittal on the charge of conspiracy to commit carjacking because the State presented no evidence, independent of their participation in the substantive offense itself, that there ever was an agreement to carjack Mann's vehicle. The argument lacks sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

"[T]he agreement to commit a specific crime is at the heart of a conspiracy charge." State v. Samuels, 189 N.J. 236, 245 (2007). "The mere knowledge, acquiescence, or approval of the substantive offense, without an agreement to cooperate, is not enough to establish one as a participant in a conspiracy." State v. Abrams, 256 N.J. Super. 390, 401 (App. Div. 1992) (citation omitted). However, "[c]ourts have regularly held that a conspiracy may be proven through circumstantial evidence." State v. Cagno, 211 N.J. 488, 512 (2012) (citing Samuels, supra, 189 N.J. at 246). Here, the jury could easily infer that defendants agreed to carjack Mann's BMW, and that they acted in a concerted and deliberate manner to do so.

Rollins additionally claims that even if the evidence supported the finding of a conspiratorial agreement, there was only evidence of a conspiracy to kidnap Mann, rather than evidence of a conspiracy to carjack his BMW, and that the theft of his car was purely spontaneous, not the object of any prior agreement. While there may have been adequate evidence to support the charge of conspiracy to commit kidnapping, the only relevant inquiry is whether there was sufficient evidence to support the conspiracy to commit carjacking charge. There clearly was.

C.

On its second full day of deliberations, the jury asked the judge to define a "hung jury," and shortly thereafter asked how to "handle a juror that [wa]s unwilling to deliberate." With the consent of all counsel, the judge provided the Model Charge regarding further deliberations.

On the fourth day of deliberations, the jury reported that it had reached a verdict on only some of the charges, and that further deliberation on the others would be futile. The parties agreed to take a partial verdict, and the judge began to do so, beginning with the verdicts as to Rollins. However, after reporting its inability to reach a verdict on count three, SBI aggravated assault of Mann, the jury indicated that it had failed to consider any of the lesser-included offenses on that count and had simply proceeded to count four. Rollins' counsel suggested that the jury be sent back to deliberate on the lesser-included charges, but the judge instead followed the prosecutor's suggestion to finish taking the verdicts on the remaining counts. As to Pierrevil, the jury also indicated an inability to reach a verdict on count three and its failure to consider the lesser included charges. The partial verdicts were taken in open court, and the jury was subsequently polled.

Neither defendant specifically objected to the judge's ensuing decision to have the jury continue to deliberate on the lesser-included offenses under count three. Within twenty minutes, the jury reported that it was unable to reach a unanimous verdict on any of the lesser-included offenses.

Defendants argue that the judge abused his discretion in accepting the partial verdict and permitting the jurors to continue deliberating rather than waiting until all deliberations had been completed. They contend that accepting the partial verdicts as final interrupted the jury's deliberative process, since resolution of the lesser-included offenses involved continued evaluation of the same evidence that supported some of the guilty verdicts.

The court rules expressly permit entry of a partial verdict at the conclusion of deliberations. R. 3:19-1(a). The Court has recognized that, where appropriate and within the trial court's sound discretion, an "interim partial verdict[,]" i.e., one taken during deliberations, is permissible. State v. Shomo, 129 N.J. 248, 254, 257-58 (1992). The procedure is to be used with caution, since according finality to an interim partial verdict could distort the deliberative process by prematurely freezing deliberations on a charge before full consideration of the issues and relevant evidence. Id. at 256-57.

To ensure that the jury understands and intends that its interim verdict be final, the court is required to unambiguously instruct the jury prior to taking the verdict "that its partial verdict will be treated in all respects as a final verdict, not subject to reconsideration, even though the jury will continue deliberations on other counts." Id. at 258. The Court elaborated that, "[a]bsent such an instruction, the risk is too great that a jury might not comprehend a partial verdict's final effect, potentially denying a defendant the right to a unanimous jury verdict." Id. at 258. After providing such an instruction, the verdict must be "received in open court, recorded, and, if requested, confirmed by a polling of the jurors[.]" Id. at 259.

In this case, once the jury reported an inability to reach a verdict on count three as to both defendants, it was error for the judge to order continued deliberations as to the lesser-included offenses. See State v. Johnson, ___ N.J. Super. ___, ___ (App. Div. 2014) (slip op. at 16 n.14); see also State v. Cooper, 151 N.J. 326, 366 (1997) (noting that, because of the likelihood of compromise, juries should not be permitted to consider lesser-included offenses until they acquit a defendant of the greater offense). However, there was no objection to the judge's decision to order continued deliberations, and any error was clearly harmless. Although the judge did not provide any instruction regarding the finality of the partial verdict in this case, the jury had no expectation of continued deliberations; it believed its task was complete, as did the judge, the prosecutor and both defense lawyers.6 In any event, we fail to see how the jury's resumption of deliberations for twenty minutes before reporting an inability to return a unanimous verdict on the lesser-included charges prejudiced defendants in any way.

D.

After the State rested, the transcript reveals that the judge and the attorneys met informally for several hours to "go over the charge," after which, on the record, the judge voir dired each defendant regarding their election not to testify. All parties agreed to continue an informal discussion of the charge, after which the judge intended to finalize the charge and "go over any issues that [they] were unable to resolve" on the record. The next volume of transcript reveals that, with both defendants present, the judge noted "we've pretty much come to agreement on most matters, but . . . we should put the charge conference on the record."7 The judge outlined the charge, noting in particular that it incorporated language suggested by Rollins' counsel. The judge invited objections to the final proposed charge, but defendants raised none.

Defendants now argue that the failure to hold a charge conference on the record pursuant to Rule 1:8-7(b) violated their rights to due process and a fair trial, and requires reversal. We do not condone the practice actually employed in this case, but absent a showing of prejudice, it does not compel reversal.

Rule 1:8-7(b) provides:

Prior to closing arguments, the court shall hold a charge conference on the record in all criminal cases. At the conference the court shall advise counsel of the offenses, defenses and other legal issues to be charged and shall rule on requests made by counsel.

 

The Rule's dual purpose is to permit counsel to conform their summations to the anticipated charge and ensure an opportunity for meaningful appellate review. Pressler & Verniero, Current N.J. Court Rules, comment 3.1 on R. 1:8-7 (2014).

Simply memorializing the results of an informal conference on the record, as occurred here, may not necessarily satisfy one purpose of the Rule because it inhibits meaningful review of controversies that may have occurred regarding the content of the charge. However, in this case, it would appear that there was consensus; the judge so indicated, and the attorneys did not disagree.

Under a prior iteration of the Rule, we held that absent a showing of prejudice, the failure to hold a charge conference and rule on specific requests on the record did not require reversal.8 State v. Conway, 193 N.J. Super. 133, 154-55 (App. Div.), certif. denied, 97 N.J. 650 (1984). Defendants properly note that when Conway was decided, the Rule afforded the court discretion. Id. at 153; and see Pressler & Verniero, supra, comment 5 on R. 1:8-7 (questioning the continued vitality of Conway in light of the Rule's language change). Nevertheless, Pierrevil asserts no error in the charge as given. Rollins argues only that the jury should have been charged on simple assault with respect to the assault on Jean-Mary. For reasons that follow, the failure to charge simple assault did not prejudice Rollins. In short, absent any objections to the charge as given or a colorable claim of prejudice, the failure of the judge to hold a full-fledged charge conference on the record does not require reversal.

E.

At trial, Jean-Mary testified that he was in his car when it was struck from behind by another vehicle and pushed from the right lane into the divider. He identified a photograph of the Lexus from which Rollins fled as the vehicle that stuck his car. Questioned about his physical condition and activities prior to the accident, he volunteered that he had "sprained [his] neck and [his] back, also herniated two discs in [his] back from the accident." Jean-Mary then stated he was treated by a chiropractor for about a year following the accident and continued to suffer pain.

Both defendants objected to Jean-Mary's testimony regarding his diagnosis, as well as the State's failure to provide any chiropractic treatment records. The judge declined to strike any of the testimony, noting that defendants would have a full opportunity for cross-examination based on the medical records they had been provided. Thereafter, the witness was permitted to extensively testify about his discomforts and limitations on daily living, although he acknowledged that he continued to work despite his ailments. He was cross-examined using the records from emergency room treatment he received on the day of the incident, including one indicating that his X-rays were negative and "'[t]here [wa]s normal alignment in disc space and height of vertebral bodies, and . . . no evidence of fracture or dislocation.'" Jean-Mary also acknowledged that his airbag never activated in the accident, and he was released from the emergency room only with instructions to take aspirin and follow up with his regular physician.

As already noted, at the end of the State's case, both defendants moved broadly to dismiss all charges against them based on insufficient evidence. Rollins argues that the State failed to introduce any evidence that Jean-Mary suffered serious bodily injury. He relies, in part, upon our decision in State v. Williams, 197 N.J. Super. 127, 131-32 (App. Div. 1984), certif. denied, 99 N.J. 233 (1985), where we held, in the context of a particularly heinous child abuse case, that "where there has been no substantial risk of death, a minor bodily injury cannot support a conviction for aggravated assault under N.J.S.A. 2C:12-1(b)(1) no matter how outrageous the attending circumstances." We agree that the State failed to adduce competent medical evidence that Jean-Mary suffered serious bodily injury, or that Rollins attempted to purposely cause serious bodily injury. We therefore reverse his conviction on count ten.

The Criminal Code defines "[b]odily injury" as "physical pain, illness or any impairment of physical condition[,]" "[s]ignificant bodily injury" as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses[,]" and "[s]erious bodily injury" as that which "creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]" N.J.S.A. 2C:11-1(a), (b) and (d). A person may, of course, commit aggravated assault pursuant to N.J.S.A. 2C:12-1(b)(1) without actually causing any injury. State v. Mingo, 263 N.J. Super. 296, 305 (App. Div. 1992) (D'Annunzio, J., dissenting), rev'd on dissent 132 N.J. 75 (1993). But where the offense is based on an attempt, the perpetrator must act with the "purpose or conscious objective" to cause serious bodily injury. State v. Green, 318 N.J. Super. 361, 371-72 (App. Div. 1999), aff'd o.b., 163 N.J. 140 (2000). Recklessness is insufficient. State v. Battle, 209 N.J. Super. 255, 259 (App. Div.), certif. denied, 105 N.J. 560 (1986).

To secure a conviction for SBI aggravated assault, the State needed to prove beyond a reasonable doubt that Jean-Mary actually suffered SBI, or, that Rollins acted with the purpose or conscious object to cause him SBI. It was error for the judge to admit over defendants' objection Jean-Mary's testimony that he had suffered two herniated discs as a result of the accident. Such a complex medical diagnosis must be the subject of expert testimony by a doctor. See e.g., Brun v. Cardoso, 390 N.J. Super. 409, 421 (App. Div. 2006). Without that testimony, there was insufficient evidence that Jean-Mary actually suffered serious bodily injury.

Additionally, since the injuries occurred when Rollins lost control and crashed his stolen car into Jean-Mary's, there was insufficient proof that defendant's purpose or conscious object was to cause serious bodily injury. In short, Rollins' motion for a judgment of acquittal on count ten, SBI assault upon Jean-Mary, should have been granted.

The question remains, however, what is the appropriate remedy. The judge provided the jury with instructions on third-degree aggravated assault, "significant bodily injury," as a lesser-included offense to SBI assault under count ten. In our mind, the evidence would support a finding of guilt on this lesser-included charge.

The evidence also would clearly support a guilty verdict as to simple assault, N.J.S.A. 2C:12-1(a), i.e., causing or attempting to cause "bodily injury." The judge did not provide a charge on simple assault. See e.g., State v. Brent, 137 N.J. 107, 117 (1994) (noting that a charge as to a lesser-included offense should be given if the evidence "present[ed] a rational basis on which the jury could [have] acquit[ted] the defendant of the greater charge and convict[ed] the defendant of the lesser"). As noted above, Rollins argues the lack of a proper charge conference on the record inhibits our review of whether his counsel sought a charge on simple assault.

Under these circumstances, rather than mold the jury's guilty verdict on SBI assault to third-degree aggravated assault, or the disorderly persons offense of simple assault, we conclude the better course is to vacate Rollins' conviction on count ten and permit the State to retry defendant if it chooses on these lesser-included offenses of SBI assault.9

IV.

In imposing sentence on defendants, the judge recounted Pierrevil's extensive criminal history, including ten juvenile petitions resulting in one adjudication and another matter waived to adult court, and ten arrests as an adult with four prior indictable convictions, including a prior conviction for aggravated manslaughter. These crimes were committed months after his most recent release from prison.

Rollins likewise had an extensive criminal history, including five juvenile petitions, three of which resulted in adjudications for offenses including receiving stolen property, joyriding, and robbery. Rollins had been arrested sixteen times as an adult, and been convicted and served prison terms for drug and weapons offenses. The judge found that both defendants qualified as persistent offenders, eligible for an extended-term pursuant to N.J.S.A. 2C:44-3.

The judge grouped the numerous offenses into three categories. The first consisted of conspiracy to commit carjacking, conspiracy to commit aggravated assault by shooting at Mann, and two counts for possession of a weapon for those unlawful purposes. The second set of crimes included eluding, resisting arrest, and receiving stolen property. The judge viewed the two counts for unlawful possession of a weapon as a separate third category of offenses. He concluded that each set of offenses had a distinct and independent objective the first, to target a particular individual with violence; the second, to escape being caught "at all cost"; and the third, to possess weapons without a permit. As such, the judge decided that sentences within each category would run concurrently with each other, but consecutively with sentences in the other categories. Otherwise, "each of the separate criminal acts that followed the initial conspiracy to commit the carjacking and aggravated assault would be essentially free crimes for which [each] defendant would face no consequences whatsoever."

The judge carefully explained his finding of aggravating sentencing factors three, six and nine as to both defendants. N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); (6) (criminal history); and (9) (the need to deter). He found no mitigating factors as to either defendant. N.J.S.A. 2C:44-1(b).

For the first category of offenses, the court imposed on each defendant a maximum extended-term sentence of imprisonment for twenty years on count two (conspiracy to commit carjacking), subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge merged the other convictions in this category of offenses and imposed a concurrent term.

Turning to the second category of offenses, the judge imposed ten-year sentences with five-year parole disqualifiers on the counts for unlawful possession of weapons. The judge sentenced both defendants to ten-year terms with five-year parole disqualifiers on the eluding counts, consecutive to the sentences already imposed, and to concurrent five-year terms on each of the counts for resisting arrest and receiving stolen property. The judge also imposed an additional concurrent ten-year sentence on Rollins for the SBI assault conviction, subject to NERA.

The result was aggregate sentences of forty years for each defendant, with a twenty-seven year period of parole ineligibility for Pierrevil and a thirty-and-one-half year ineligibility period for Rollins.10

Before us, both defendants challenge their sentences as excessive. Defendants argue that the judge relied solely on their past criminal records to justify both an extended term and the finding of certain aggravating factors to impose the maximum extended term sentence. Defendants also argue that consecutive sentences were unjustified.

"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (quotation omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid.(quoting State v. O'Donnell, 117 N.J.210, 215 (1989)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J.334, 364 (1984) (citation omitted); accordState v. Cassady, 198 N.J.165, 183-84 (2009).

The judge's finding that aggravating factors three, six and nine applied to each defendant is unassailable. The judge carefully considered the appropriateness of an extended term sentence on the conspiracy to commit carjacking charge, and his decision to impose a maximum term on that count, and the other counts, reflects a careful weighing of the sentencing criteria. We find no basis to upset the length of the sentences imposed.

We also reject the contention that the judge abused his discretion by imposing consecutive sentences. In Yarbough, supra, 100 N.J. at 643-44, the Court set forth the factors to consider when deciding whether to impose consecutive or concurrent sentences. The Yarbough factors essentially focus upon "'the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims.'" State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)).

Here, the judge carefully grouped defendants' criminal activities into three categories, imposing concurrent sentences within each, but consecutive sentences from one category to the next. The rationale for imposing consecutive sentences reflects the underlying philosophy that when crimes are committed against different victims at different times, consecutive sentences are appropriate. Id. at 422-23. We also reject Pierrevil's argument that imposing a consecutive sentence for unlawful possession of a weapon was improper. See State v. Cooper, 211 N.J. Super. 1, 22-25 (App. Div.), certif. denied sub nom., State v. Larson, 105 N.J. 525 (1986) (noting that unlawful possession of a weapon constitutes a separate offense that does not merge with a conviction for a substantive crime and which may justify a consecutive sentence).

We affirm the sentences imposed upon Pierrevil. For the reasons already stated, we vacate the sentence imposed upon Rollins for the conviction on count ten, and remand the matter to the trial court for the entry of an amended judgment of conviction, and for further proceedings consistent with this opinion.

As to A-2492-11, affirmed. As to A-2468-11, affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.

 

 

1 Pierrevil was also separately charged in a second indictment with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). The trial on this indictment immediately followed before the same jury, which could not reach a unanimous verdict. The State subsequently dismissed the indictment.

2 Police also found spent 9mm. casings at the scene of the assault on Mann. However, the ballistics expert testified that those shells were not fired from either of the guns recovered. The jury ultimately could not reach a verdict regarding the two counts in the indictment that charged defendants with possessory offenses involving the 9mm. handgun.

3 The Court has since provided the trial judge with a variety of alternative remedies to address any finding of the unconstitutional use of peremptory challenges. State v. Andrews, 216 N.J. 271, 293 (2013).

4 Both defendants are African-American males.

5 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

6 Since this case was tried, Model Jury Charge (Criminal), "Partial Verdicts," (Approved 6/10/13), was promulgated. That charge not only advises jurors that their partial verdict will be final, but also provides the jury with an option to continue deliberations rather than report a partial verdict.

7 The initial discussion is reflected in a transcript from Thursday, June 23, 2011; the second is found in a transcript from Tuesday, June 28, 2011. There is no indication that there were any recorded proceedings in the interim.

8 At the time, the Rule provided:

At or before the commencement of the trial, or thereafter but before the close of the evidence as to issues not anticipated prior to trial any party may submit written requests that the court instruct the jury on the law as set forth in the requests. Copies of the requests shall be furnished all parties at the time they are submitted to the court. The court shall, on the record, rule on the requests prior to closing arguments to the jury. Objections to the instructions to the jury shall be in accordance with [Rule] 1:7-2.

 

[Pressler, Current N.J. Court Rules, R. 1:87 (1984).]

9 We note that on July 10, 2014, the Court granted certification in State v. R.P., to specifically consider whether, instead of ordering a new trial, the Appellate Division should have molded the jury's guilty verdict on the greater offense to a guilty verdict on an uncharged lesser-included offense that was supported by the evidence at trial. No. A-1569-10 (App. Div. Dec. 27, 2013) (slip op. at 18-19), certif. granted, ___ N.J. ___ (2014).

10 This additional period of parole ineligibility as to Rollins stemmed from NERA's applicability to his SBI assault conviction in count ten.