STATE OF NEW JERSEY v. LENAIRE D. HENDERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LENAIRE D. HENDERSON, a/k/a

HAIRSTON LEROY, a/k/a LANAIRE

HENDERSON, a/k/a LANIER HENDERSON,

Defendant-Appellant.

_____________________________________

August 27, 2014

Submitted December 11, 2013 Decided

Before Judges Grall and Accurso.

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

No. 10-12-2288.

Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the briefs).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor and Peter M. Draper, Legal Intern, on the brief).

PER CURIAM

A jury found defendant Lenaire Henderson guilty of first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and third-degree receiving stolen property, N.J.S.A. 2C:20-7. The jury acquitted him of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). The judge denied the State's motion for an extended term and, after merging the weapons convictions, sentenced defendant to an eighteen-year term of imprisonment for the robbery subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent three-year term for receiving stolen property. Defendant appeals his conviction and sentence. We affirm.

On the afternoon of July 23, 2010, Toms River Police received a call from a man claiming to have been robbed at gunpoint. The victim, a man by the name of Anderton, reported that he was driving to Toms River to go fishing with his uncle. Traffic was slow on the Parkway and he had gotten hot. He exited the Parkway and pulled into a shopping plaza to take off his shirt. Anderton claimed that he was sitting in his car when two black males got out of a black Nissan Maxima, climbed through his passenger window and robbed him at gunpoint.

Anderton told the police that one of the men stuck a silver gun in his abdomen while the other rifled his pockets. He said the men took his car keys, cell phone, cigarettes, a pocket-knife and $82 in cash. He described the man with the gun as a "big black guy," larger than his companion with "thick arms." The other man he termed "muscular" and claimed both were shirtless. Anderton described their car as dark-colored or black and claimed the front license plate was dangling and appeared to be attached with a bungee cord. The detective who reported to the scene observed several red circular marks on Anderton's abdomen that looked to have been made by the barrel of a gun.

The police immediately undertook to track Anderton's cell phone through his cell service provider. The police tracked the phone to an apartment in Toms River where outside was parked a black Nissan Maxima with a bungee cord securing the front license plate. After the police established a secure perimeter around the building, detectives again questioned the victim about the robbery. Anderton admitted that he had lied about the fishing trip and was in the parking lot to buy drugs from one of the robbers, a man he knew as "Mittens." He claimed he met "Mittens," later identified as Matthew Banks, and Banks' girlfriend a month earlier in Seaside. Anderton told the police that Banks and the other male, later identified as defendant, robbed him at gunpoint after he got into their car. He insisted that all of the other information he had provided the police, including his description of the suspects, the gun, and the car they were in, was accurate.

After obtaining a warrant, the police found cocaine in the Nissan outside the apartment and convinced the suspects, and the two women with them, to give themselves up. A subsequent search of the apartment uncovered a silver .357 magnum handgun in the refrigerator, Anderton's keys, a pack of cigarettes of the same brand stolen from him, $41 and two cell phones, one of which was Anderton's.

Banks and his girlfriend testified against defendant at trial, as did Anderton. Anderton identified defendant as the man wielding the gun. Banks' girlfriend testified that she and Banks had been together for five years and were the parents of two children. She claimed to have known defendant for a year at the time of the robbery. On the afternoon of the robbery, she watched defendant take a gun from a closet before leaving with Banks to meet Anderton, one of Banks' regular customers, for a drug buy. The two returned to the apartment a short time later, followed soon by the police. She testified that as the police arrived she watched as defendant removed the SIM card from the victim's cell phone and place it in a bottle of spring water. He then crawled through the apartment to place the gun in the refrigerator.

Banks testified that he likewise had known defendant for a year prior to the robbery, and he identified him in the courtroom. He explained that he had arranged to meet Anderton, whom he knew from prior drug sales, to sell him Roxies (oxycodone). Defendant drove Banks to meet Anderton. Banks testified that he knew defendant was carrying a gun when the two left the apartment. Once Anderton was in their car, defendant drew the gun on Anderton and told defendant to empty Anderton's pockets. The two men left Anderton in the parking lot and returned to the apartment in Toms River. Defendant told Banks before they were arrested that he had hidden the gun in the refrigerator. Banks admitted that he had negotiated a plea agreement which required his truthful testimony against defendant at trial.

The State also presented the testimony of three police officers, all of whom identified defendant as one of the men who left the apartment in which Anderton's personal belongings were later located. Defendant did not testify at trial. His counsel cross-examined Anderton, Banks and Banks' girlfriend at length, arguing to the jury that their statements to the police were not consistent with their testimony at trial, which was self-serving and not credible.

Defendant raises the following issues for our consideration.

POINT I

THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, 1, 9, 10 (Not Raised Below).

POINT II

THE 18-YEAR SENTENCE FOR ROBBERY, WITH AN 85% PAROLE DISQUALIFIER, WAS MANIFESTLY EXCESSIVE, AND THE JUDGE FAILED TO PROVIDE DETAILED STATEMENTS OF REASONS FOR FINDING THE AGGRAVATING FACTORS HE APPLIED, AND DECLINING TO FIND MITIGATING FACTORS.

We reject defendant's claim that he was deprived of a fair trial by the judge's failure to give an identification charge. We start, of course, with the proposition that, "[a]ccurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial." State v. Concepcion, 111 N.J. 373, 379 (1988). "[A] mandatory duty exists on the part of the trial judge to instruct the jury as to the fundamental principles of law which control the case." State v. Butler, 27 N.J. 560, 595 (1958). "[A]s a matter of general procedure a model identification charge should be given in every case in which identification is a legitimate issue." State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003). "When identification is a 'key issue,' the trial court must instruct the jury on identification, even if a defendant does not make that request." State v. Cotto, 182 N.J. 316, 325 (2005). Identification is a key issue when "'[i]t [is] the major . . . thrust of the defense,' [State v. Green, 86 N.J. 281, 291 (1981)], particularly in cases where the State relies on a single victim-eyewitness, see State v. Frey, 194 N.J. Super. 326, 329 (App. Div. 1984) ('The absence of any eyewitness other than the victim and defendant's denial of guilt, made it essential for the court to instruct the jury on identification.')." Cotto, supra, 182 N.J. at 325-26.

Here, the victim, Anderton, was not the only eyewitness. Banks, defendant's partner in the robbery, and Banks' girlfriend both testified against defendant. Although not arguing that he was misidentified at trial, defendant now contends that misidentification was subsumed within the defense he pursued, namely that the witnesses against him were incredible. The record, however, belies his claim. A review of the trial transcripts reveals no indication that identification was a key issue to the defense, or indeed an issue at all in the trial. Defendant did not raise an alibi defense. The defense never contended that defendant was not with Banks and Banks' girlfriend on the day of the robbery or that he was misidentified by Anderton. Defendant was identified by three eyewitnesses, two of whom knew him. Although defense counsel cross-examined the three at length, exploring inconsistencies in their prior statements to the police and the "deal" Banks got from the prosecutor for testifying against defendant, counsel never challenged the accuracy and reliability of their identifications of defendant. Accordingly, we do not find that the trial judge erred in failing to give an instruction on identification because identification was not an issue in the case.

Although the trial judge did not give an identification charge, his instructions include repeated, specific references to the State's obligation to prove beyond a reasonable doubt that defendant put Anderton in fear of immediate bodily injury in the course of a theft and while armed with a deadly weapon. The judge charged that defendant was presumed innocent and had no obligation to prove his innocence or offer any proof in his defense. Further, the trial judge thoroughly instructed the jury in weighing the credibility of the witnesses, including that they could weigh Banks' guilty plea to the robbery for which defendant was being tried in assessing Banks' credibility.

We are satisfied that, read as a whole, this charge could not have permitted the jurors to conclude that they could convict defendant on the robbery and weapons charges without the State proving that he was the person who pulled the gun on Anderton. See State v. Gaines, 377 N.J. Super. 612, 625-26 (App. Div.) (considering the corroborating evidence in light of the issues in dispute and the charge as a whole in determining whether lack of an identification charge could be considered harmless error) certif. denied, 185 N.J. 264 (2005). In light of his inability to identify the race of the victim, defendant's argument that a cross-racial identification charge was required is without merit. See State v. Henderson, 208 N.J. 208, 298-99 (2011) (requiring cross-racial identification charge to be given whenever cross-racial identification is in issue at trial); R. 2:11-3(e)(2).

We also reject defendant's argument that his sentence is excessive. "Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). Defendant had more than ten prior superior court convictions and was eligible for an extended term as a persistent offender. N.J.S.A. 2C:44-3a. The judge declined to sentence defendant to an extended term because he found the upper range of the ordinary term for the robbery charge allowed an appropriate sentence. The judge merged the weapons offenses and, in light of the serious nature of theoffense and defendant's long criminal history, sentenced defendant to an eighteen-year NERA term for robbery, and a concurrent three-year term for receiving stolen property. The judge further acknowledged defendant's extended criminal record in finding aggravating factors three, the risk that defendant would commit another offense, six, the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted and nine, the need to deter, N.J.S.A. 2C:44-1a(3), (6) and (9). The judge rejected mitigating factor eight, that defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8).

We are satisfied that the judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Fuentes, 217 N.J. 57, 70-71 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).

Affirmed.