STATE OF NEW JERSEY v. JOSEPH V. DELIBERO

NOT FOR PUBLICATION WITHOUT THE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.

JOSEPH V. DELIBERO,

Defendant-Appellant.

_________________________________

February 11, 2014

Submitted September 11, 2013 Decided

Before Judges Waugh and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-03-0213.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meghan V. Tomlinson, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Joseph V. Delibero of first-degree robbery and other offenses as the accomplice of co-defendant Christ L. Mair, who robbed a store at gunpoint. Defendant claims his robbery conviction should be reversed because the judge did not give the jurors a proper accomplice liability charge when instructing them on the lesser included offense of second-degree robbery. The error is harmless beyond a reasonable doubt, however, because the evidence did not permit the jury to acquit defendant of first-degree robbery and convict him of second-degree robbery.

Defendant also claims that his sentence is excessive. We reject that argument as well. Accordingly, we affirm.

I.

A.

A Union County grand jury returned an indictment charging both defendant and Mair with first-degree robbery, N.J.S.A. 2C:15-1 (count one), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count five); defendant alone with second-degree eluding an officer, N.J.S.A. 2C:29-2(b) (count four); and Mair alone with third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count six). In a separate single-count indictment, the grand jury charged defendant with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7.

Following defendant's unsuccessful motion to suppress evidence seized by police from the home defendant shared with his girlfriend, defendant proceeded to trial. Mair, who had entered into a plea agreement with the State, testified against him. The jury found defendant guilty on all counts. At sentencing, after merging count three into count one, the judge granted the State's motion to sentence defendant to extended an term for robbery, and sentenced him on count one to a twenty-five year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge sentenced defendant to a consecutive seven-year custodial term with three years of parole ineligibility on count four, eluding. As to counts two and five, the judge sentenced defendant to concurrent custodial terms of four years on count two, unlawful possession of a weapon, and one year on count five, resisting arrest. Lastly, on the "certain persons not to have weapons" count of the remaining indictment, the judge sentenced defendant to a concurrent five-year custodial term with five years of parole ineligibility. The judge also imposed appropriate fines, penalties, and assessments.

B.

The State presented evidence at trial that defendant planned the robbery of a Dunkin Donuts store, drove co-defendant Mair to the store, supplied Mair with a gun, and fled from the store and from the police after Mair robbed the store. Defendant, through counsel, denied that he participated in the robbery.

These were the State's proofs. Mair testified that on August 22, 2003, he robbed a Dunkin Donuts store in Linden at gunpoint. His motive was to get money to repay a loan to defendant. Three weeks before the robbery, Mair had borrowed approximately $485 from defendant to pay a gambling debt. After Mair borrowed the money, defendant began to harass and pressure him to repay it. On the day of the robbery, defendant telephoned Mair at his house and showed up a short time later in his girlfriend's SUV. While inside Mair's home, defendant displayed a handgun. He told Mair to bring a pillowcase and the two drove to the house in Linden where defendant lived on the second floor with his girlfriend and her son. He ran upstairs, returned, and drove to the Dunkin Donuts a few blocks away, arriving at approximately 1:30 p.m.

Defendant got out of the SUV, walked to the Dunkin Donuts store, looked through the doorway and through a side window, and then returned to the truck. After climbing into the front driver's side seat, he told Mair, "this is the spot." Defendant declared that Mair was going to rob the store. He told Mair where the cash registers were and he also told Mair that two people were in the store. Defendant wanted Mair to rob the store so that Mair could repay defendant the money he had borrowed.

Defendant displayed an automatic handgun, removed the clip, cocked it, and handed it to Mair. Mair saw that defendant had a smaller handgun and a knife. Mair got out of the truck, walked toward the store, and pulled a "skully" over his head as he entered. A female employee who saw Mair enter the store with the gun ran out the back door into the lot where defendant was parked. Mair grabbed a man whom he thought was the owner and ordered him to get the money out of the cash register. When the owner took too long, Mair hit him over the head with the gun, inflicting a wound that required treatment at a nearby hospital.

After assaulting the owner, Mair glanced out the window and saw defendant signaling him to hurry up. Mair snapped a cash drawer off of the cash register, put it under his arm, and ran out the back door. When he saw the SUV he threw the cash register drawer in the back door, slammed it shut, and jumped in the front. The two men sped off in the truck. The robbery had been recorded by a surveillance camera and Mair authenticated the recording during his testimony.

The female employee who had run out the back door had encountered defendant. As she crossed the parking lot while Mair was robbing the store, she saw a man in an SUV, told him there was a robbery taking place, and asked him to call the police. He said he would see what he could do and told her to go get help. She later identified the man as defendant.

After asking defendant to call the police, the employee ran into a neighboring retail store where a patron called 9-1-1 and reported the robbery. As the patron walked out of the store, still on his cellular phone with the 9-1-1 dispatcher, he saw a man carrying a gray box running toward a Ford Escape. The man got into the truck and it sped away, but not before the patron saw and reported the license plate number. According to the patron, the police arrived within seconds. The patron later went to the Linden Police Department and identified defendant, depicted in a photograph, as the driver of the SUV.

Mair told the jury that after he and defendant fled from the Dunkin Donuts, defendant drove back to his house and took the guns inside. Mair waited in the SUV. Defendant returned with scissors and tried to open the cash drawer. While defendant was doing so, a marked police car approached. When defendant saw the police he told Mair, "I ain't going back to f*****' jail," and sped away. The police car, soon joined by others, chased them. Defendant reached speeds of fifty-five miles per hour. He eventually lost control of the truck, ran over a curb, hit a stop sign, and came to a stop in someone's yard. Mair and defendant fled on foot. Officer Anthony Hatzelhoffer chased defendant for approximately one hundred feet before grabbing his shoulder, causing them both to fall. Officer Hatzelhoffer handcuffed and arrested defendant. Another officer apprehended Mair. The police recovered the cash drawer and other evidence from the SUV.

Detectives from the Linden Police Department arrived at defendant's home, as did defendant's girlfriend, Kristine Martucci. She permitted police to search her bedroom and retrieve her black 9 mm Beretta, for which she had a permit, from beneath her bed. The police also seized from beneath her bed a smaller 380 automatic, which Martucci had never seen, as well as two knives. The State established that her Beretta was the gun defendant had given to Mair to rob the Dunkin Donuts.

Defendant presented the testimony of a single witness, Noelle Bergeron, who saw defendant enter his second-floor home during the afternoon of August 22, 2003. Bergeron was visiting a friend. She did not see defendant carrying any weapons. His demeanor was pleasant. As we have previously explained, defendant, through his attorney, denied that he participated in the robbery.

II.

In this appeal, defendant raises the following points for our consideration:

POINT I

THE COURT'S FAILURE TO PROVIDE THE JURY WITH A CHARGE EXPLAINING HOW MR. DELIBERO COULD BE FOUND GUILTY OF A LESSER-INCLUDED OFFENSE AS AN ACCOMPLICE TO THE CO-DEFENDANT IF HE DID NOT KNOW MR. MAIR HAD A FIREARM DEPRIVED MR. DELIBERO OF DUE PROCESS AND A FAIR TRIAL. (NOT RAISED BELOW).

POINT II

THE IMPOSITION OF A MAXIMUM AGGREGATE TERM OF 32 YEARS OF IMPRISONMENT FOR ARMED ROBBERY AND ELUDING WAS EXCESSIVE.

We first address defendant's contention in Point I that he is entitled to a new trial because the trial judge misinstructed the jury. Because defendant did not object to the instruction when the judge gave it, "we review the charge for plain error and reverse only if such an error was 'clearly capable of producing an unjust result.'" State v. Miller, 205 N.J. 109, 126 (2011) (quoting R. 2:10-2).

Defendant argues that that the trial judge erred by charging the jury on both first-degree robbery and the lesser included offense of second-degree robbery, and then giving the model jury charge to be used when juries receive no instruction as to lesser included offenses rather than the accomplice liability charge to be used when juries are instructed as to lesser included offenses. Defendant further argues that by omitting the correct accomplice charge, the judge failed to "explain to the jury how it could find a defendant guilty under the accomplice-liability charge of [the] lesser-included offenses by adapting the charge to possible interpretations of the facts."

To provide context for both defendant's argument and our plain error analysis, we begin by summarizing the relevant statutes and jury charges. The robbery statute provides, in pertinent part, that "[a] person is guilty of robbery if, in the course of committing a theft, he . . . [i]nflicts bodily injury or uses force upon another[,] or . . . [t]hreatens another with or purposefully puts them in fear of immediate bodily injury." N.J.S.A. 2C:15-1(a)(1)-(2). "Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor . . . is armed with . . . a deadly weapon." N.J.S.A. 2C:15-1(b). As we have previously explained, the indictment charged defendant with one count of first-degree robbery. Nevertheless, the trial judge instructed the jury on both first-degree and second-degree robbery. Although the record is not entirely clear, the judge apparently charged second-degree robbery as a lesser included offense of first-degree robbery.

The judge also charged the jury on accomplice liability. The model jury charges include two charges on accomplice liability: one for use when no lesser included offenses are charged, the other for use when lesser included offenses are charged. The former states in relevant part:

A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he/she (a) solicits such other person to commit it and/or (b) aids or agrees or attempts to aid such other person in planning or committing it.

This provision of the law means that not only is the person who actually commits the criminal act responsible for it but one who is legally accountable as an accomplice is also responsible as if he/she committed the crime(s) himself/herself.

[Model Jury Charge (Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6), Accomplice. Charge # One - Where defendant is charged as accomplice and jury does not receive instruction on lesser included charges." (May 22, 1995).]

The latter includes the same language, but adds the following language relevant to lesser included offenses:

Now, as I have previously indicated, you will initially consider whether the defendant should be found not guilty or guilty of acting as an accomplice of X with full and equal responsibility for the specific crime(s) charged. If you find the defendant guilty of the specific charge(s), then you need not consider any lesser charge(s).

If, however, you find the defendant not guilty of acting as an accomplice of X on the specific crime(s) charged, then you should consider whether the defendant did act as an accomplice of X but with the purpose of promoting or facilitating the commission of some lesser offense(s) than the actual crime(s) charged in the indictment.

Our law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent on his/her own state of mind and not on anyone else s.

Guided by these legal principles, and if you have found the defendant not guilty of the specific crime(s) charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser charge of_________________________. I will now explain the elements of that offense to you. (Here the court may tell the jury what view of the facts could lead to this conclusion).

In considering whether the defendant is guilty or not guilty as an accomplice on this lesser charge, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent on his/her own state of mind and no one else s.

[Model Jury Charge (Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6), Accomplice. Charge # Two - Where defendant is charged as accomplice and jury is instructed as to lesser included charges." (May 22, 1995).]

The reason for the latter instruction is that "when 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.'" State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (alteration in original) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)). The court should also explain to the jury "what view of the facts could lead to this conclusion." Id. at 533.

Failure to properly instruct the jury on accomplice liability for lesser included offenses is usually reversible error. See State v. Hogan, 297 N.J. Super. 7, 23 (App. Div.), certif. denied, 149 N.J. 142 (1997). That is because "[a]n erroneous jury charge 'when the subject matter is fundamental and essential or is substantially material' is almost always considered prejudicial[,]" State v. Maloney, 216 N.J. 91, 104-05 (2013) (quoting State v. Green, 86 N.J. 281, 291 (1981)). "Such errors are 'poor candidates for rehabilitation under the harmless error philosophy.'" Id. at 105 (quoting State v. Simon, 79 N.J. 191, 206 (1979)). They "are presumed to be reversible error, excusable only if they are harmless beyond a reasonable doubt." State v. Crisantos, 102 N.J. 265, 273 (1986). We nevertheless conclude that the judge's improper instruction here does not constitute reversible error under a plain error analysis. The evidence did not permit the jury to acquit defendant of first-degree robbery and convict him of the lesser included offense of second-degree robbery.

"An accomplice may be guilty of armed robbery even though he did not personally possess or use the firearm in the course of the commission of the robbery." State v. White, 98 N.J. 122, 130 (1984). On the other hand, "[i]t is possible for an accomplice to be guilty of robbery and for his compatriot to be guilty of armed robbery." Id. at 131. For that reason, "[i]f there exists a rational basis in the proofs to support a conviction of a lesser degree of the crime, that issue must be submitted to the jury." State v. Bohannan, 206 N.J. Super. 646, 649 (App. Div. 1986). "However, a court is not obligated to, indeed should not, instruct a jury to return a verdict that would clearly be unwarranted by the record." Crisantos, supra, 102 N.J. at 273.

The latter principle is codified in N.J.S.A. 2C:1-8(e), which states: "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." The Supreme Court has interpreted this statute as requiring a rational basis not only for the jury to convict a defendant of a lesser offense, but also "'for the jury to acquit the defendant of the greater offense.'" State v. Cagno, 211 N.J. 488, 521 (2012) (quoting State v. Brent, 137 N.J. 107, 123 (1994)), cert. denied, Cagno v. New Jersey, ___ U.S. ___, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013). "'The question basically is whether a jury giving the evidence full credence could reasonably return a verdict of guilty on the lesser included offense.'" Crisantos, supra, 102 N.J. at 277 (quoting Ross v. State, 211 N.W.2d 827, 833 (Wis. 1973)). Here, the jury could not have reasonably returned a verdict of guilty on second-degree robbery.

"Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor . . . is armed with . . . a deadly weapon." N.J.S.A. 2C:15-1(b). Here, Mair was armed with a Beretta when he robbed the Dunkin Donuts store. A handgun is a deadly weapon, even if not loaded. See N.J.S.A. 2C:11-1(c); State v. Rolon, 199 N.J. 575, 583 (2009); State v. Orlando, 269 N.J. Super. 116, 126-27 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994). Mair committed first-degree robbery.

The State tried defendant on the theory that he was Mair's accomplice and the jury so found. Our review of the record discloses no evidence that would have provided a rational basis for the jury to acquit defendant of first-degree robbery but convict him of second-degree robbery. The State's evidence established that defendant obtained two handguns, drove Mair to the Dunkin Donuts store, provided him with a cocked Beretta, and fled with Mair after the robbery. Defendant, through counsel, denied any involvement in the robbery. No evidence suggested defendant intended or knew that Mair would rob the store but did not know he possessed a deadly weapon. Defendant's assertion for the first time on appeal that the jury could have found he knew about the robbery but did not know Mair was armed is contrary to the State's proofs, unsupported by defendant's denial at trial of any involvement, and substantiated by neither a reference to the record nor any evidence in the record.

In short, there was no rational basis for a verdict acquitting defendant of first-degree robbery and convicting him of second-degree robbery. The trial judge should not have charged second-degree robbery. N.J.S.A. 2C:1-8(e); Crisantos, supra, 102 N.J. at 273. Because defendant was not entitled to a charge on second-degree robbery, the judge's failure to give the correct accomplice charge was harmless beyond a reasonable doubt. The judge properly instructed the jury as to first-degree robbery and accomplice liability, and the jury found defendant guilty of both beyond a reasonable doubt based on overwhelming evidence.

III.

In his second point, defendant claims that his sentence is excessive. He does not argue that the sentencing judge erred by finding three aggravating factors and no mitigating factors, nor does he argue that the judge erred by imposing an extended twenty-five year custodial term on the robbery count. Rather, he argues that the judge failed to properly consider the real-time consequences of the twenty-five year extended custodial term, and failed to properly evaluate the Yarbough1 factors when he imposed a consecutive seven-year term on the eluding count. We disagree with both arguments.

Defendant's criminal record spanned thirty-seven years, during which he had been convicted of at least ten crimes, including possession of a dangerous weapon on one occasion, and robbery on another. As the judge noted, probation and parole had resulted in no positive reaction from defendant.

The judge explained that he had "considered the ramification of what real time means," and acknowledged that defendant would be subject to an eighty-five percent period of parole ineligibility under NERA, N.J.S.A. 2C:43-7.2. He then explained that defendant had previously been sentenced to custodial terms of sixteen years, five years, and six to twelve years; yet, despite the time defendant had served in prison, he had planned and taken part in an armed robbery.

The judge also stated explicitly that he was mindful of the Yarbough criteria for evaluating whether sentences should be imposed consecutively or concurrently. He explained that the robbery perpetrated by defendant and Mair was independent of the crime of eluding and posed different risks to the victims: in one instance, to the employees of Dunkin Donuts, and in the other instance, to law enforcement officers and pedestrians. And when the judge imposed the consecutive sentences, he stated that he was being careful to avoid "double counting of any of the aggravating factors in this matter."

Although the judge did not specifically equate or correlate each of his reasons for imposing consecutive sentences to a specific corresponding Yarbough factor, defendant has cited no case requiring such specificity. The judge did, however, separately explain his reasons for imposing consecutive sentences; found that the crimes involved separate acts of violence or threats of violence; and found that the crimes involved multiple victims. See Yarbough, supra, 100 N.J. at 643-44. The majority of Yarbough factors supported consecutive sentences. See State v. Carey, 168 N.J. 413, 427-28 (2001).

When sentencing defendant, the judge considered statutorily enumerated aggravating and mitigating factors, N.J.S.A. 2C:44-1(a)-(b); balanced them; properly evaluated the Yarbough criteria for imposing consecutive sentences; and adequately explained how the aggregate sentence was determined. See State v. Kruse, 105 N.J. 354, 360 (1987). The judge having properly "'exercise[d] discretion in accordance with principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court],'" we will not second-guess him. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114 N.J. 383, 384 (1989)). In light of the particular facts of this case, the sentence certainly does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

1 State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).