STATE OF NEW JERSEY v. MARCEL A. SAMERO

NOT FOR PUBLICATION WITHOUT THE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.

MARCEL A. SAMERO, a/k/a

MANUEL A. MONQUE,

Defendant-Appellant.

__________________________

August 5, 2015

Submitted January 12, 2015 Decided

Before Judges Simonelli and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-02-0094.

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

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Lisa Sarnoff Gochman, Legal Assistant, of counsel and on the brief).

PER CURIAM

A grand jury indicted defendant Marcel Samero for first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count one); second-degree conspiracy to commit unarmed robbery, N.J.S.A. 2C:5-2(a) and N.J.S.A. 2C:15-1(a)(1) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count six). The charges stemmed from defendant's involvement in the armed robbery of a Walmart in tandem with his co-defendants Lauren Schofield, Robert Smith and Aaron Samero (Aaron). Schofield and Aaron pled guilty to conspiracy to commit theft and Smith pled guilty to second-degree conspiracy to commit armed robbery. All three co-defendantstestified against defendant at his trial and established his involvement in planning and committing the robbery.

Prior to the trial, the State dismissed counts two, four and five. The jury found defendant not guilty on count three of possession of a weapon for an unlawful purpose, but guilty on count one of first-degree conspiracy to commit robbery as a lesser-included offense of first-degree robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(b). Following a separate trial before the same jury, defendant was convicted on count six of certain persons not to have weapons. At sentencing, Judge Michael J. Haas imposed 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 count one, and a consecutive seven-year term of imprisonment with five years of parole ineligibility on count six. The judge also imposed the appropriate assessments and penalties and ordered defendant to pay restitution in the amount of $38,260.38.

On appeal, defendant raises the following contentions

POINT I

SINCE THE PROSECUTOR SPECIFICALLY REQUESTED THAT THE CONSPIRACY COUNT OF THE INDICTMENT BE DISMSSED PRIOR TO TRIAL, A CONSPIRACY INSTRUCTION TO THE JURORS AT THE END OF TRIAL DEPRIVED DEFENDANT NOTICE AND DUE PROCESS, MANDATING THE REVERSAL OF HIS CONVICTIONS.

POINT II

SINCE THERE WAS AN ABSENCE OF ANY SEPARATE CONVICTION FOR POSSESSION OF A WEAPON AT THE MAIN TRIAL, THE BIFURCATED GUILTY VERDICT OF THE CERTAIN PERSONS WEAPONS CHARGE WHICH INCLUDES POSSESSION OF A WEAPON, WAS IMPROPERLY INCONSISTENT.

POINT III

THE JURY IN THE BIFURCATED TRIAL FOR THE CERTAIN PERSONS WEAPONS CHARGE WAS IMPROPERLY TOLD TO CONSIDER EVIDENCE IN THE PRIOR TRIAL WITHOUT A BAD-ACTS LIMITING INSTRUCTION. (Not Raised Below).

POINT IV

THE [EIGHT]-YEAR SENTENCE OF IMPRISONMENT FOR SECOND[-]DEGREE CONSPIRACY TO COMMIT ROBBERY, SUBJECT TO THE [EIGHTY-FIVE PERCENT] NERA PAROLE BAR, AND A CONSECUTIVE [SEVEN]-YEAR SENTENCE OF IMPRISONMENT FOR THE SECOND DEGREE CERTAIN PERSONS WEAPONS OFFENSE, SUBJECT TO A [FIVE]-YEAR PAROLE BAR WAS EXCESSIVE.

POINT V

THE IMPOSITION OF SUBSTANTIAL RESTITUTION RELATING TO SOME $30,000 STOLEN FROM WALMART, WAS IMPROPER. (Not Raised Below).

We reject these contentions and affirm.

I.

We derive the following facts from the record. In August 2008, defendant and Smith formulated a plan to rob a Walmart. Defendant's sister, Mary,1 worked at the store, which gave defendant an excuse to be inside the store when it closed, especially because he previously entered the store to pick up Mary at the end of her shift. Defendant had previously discussed Walmart's closing procedures with Mary, and thus knew the procedures and knew that the "war wagon"2 was locked. Defendant and Smith used this information to plan and prepare for the robbery, which included Smith buying bolt cutters to be used to cut the lock on the "war wagon."

Mary's employment with Walmart terminated prior to the robbery, but defendant and Smith nonetheless proceeded with their plan to rob the store. They first attempted the robbery on October 1, 2008, but aborted when defendant's car stalled in the fire lane in front of the store. The next day, defendant, Smith, Aaron and Schofield gathered at defendant's father's house to prepare for the robbery and decided to use Schofield's car since defendant's car had stalled the prior night.

Smith and defendant drove to Walmart in Schofield's car while Aaron and Schofield drove to a nearby Acme in Aaron's car to act as lookouts. Smith parked in the fire lane in front of the store and took an operable nine millimeter pellet gun, which fired metal BBs, from under the front seat. When they saw Walmart employees wheeling the "war wagon" by the front store window, they exited the car to commit the robbery.

A.S.,3 who was sitting inside Walmart waiting for his wife, C.B., a Walmart employee, to finish her shift, saw defendant and Smith enter the store. Smith pointed the gun at A.S. and ordered him to the ground; A.S. complied. C.B. and a fellow employee, K.A., heard the commotion as they were wheeling the "war wagon." C.B. ran toward her husband, but Smith saw her, pointed the gun at her, and ordered her to the ground; C.B. complied. Meanwhile, K.A. hid behind some merchandise, peeked out, and saw defendant and Smith. Afraid, she then ran into the women's restroom, locking herself in a stall and crouching on the toilet seat to hide, leaving the "war wagon" unattended.

Defendant and Smith went to the "war wagon," and Smith placed the gun on the wooden box and used the bolt cutters to break it open. Smith then went to the women's restroom to look for K.A. while defendant grabbed the gun, waved it around, and began removing the money from the wooden box.

After the robbery, defendant and his three cohorts went back to defendant's father's house; however, because defendant's father was home, the four went to home of H.B., the mother of defendant's child. Once there, defendant and Smith evenly split approximately $38,000 they had stolen. After this, Smith abandoned Schofield's car on a street in Trenton so that Schofield could report it stolen. He left the bolt cutters in the car.

A few weeks after the robbery, H.B. implicated defendant in the robbery, and Schofield became a person of interest. Defendant was arrested soon thereafter.

II.

Defendant contends in Point I that because the State dismissed count two charging first-degree conspiracy to commit unarmed robbery, Judge Haas erred in charging the jury on conspiracy to commit armed robbery as a lesser-included offense of first-degree robbery. We disagree.

Proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981); State v. Afanador, 151 N.J. 41, 54 (1997). The court must give the jury "a comprehensive explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Green, supra, 86 N.J. at 287-88. The judge should instruct the jury on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. In reviewing a jury charge, we examine the entire charge to determine whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005). A defendant should be tried with correct jury instructions, therefore "an erroneous charge will rarely stand on the ground that the error was harmless." State v. Barden, 195 N.J. 375, 394 (2008).

Upon a party's request, the judge shall charge the jury with respect to an included offense when there is a rational basis for a verdict convicting the defendant of the included offense. N.J.S.A. 2C:1-8(e); State v. Harris, 357 N.J. Super. 532, 538-39 (App. Div. 2003). A "rational basis" is not sheer speculation, but exists when "[t]he evidence . . . present[s] adequate reason[s] for the jury to acquit the defendant on the greater charge and to convict on the lesser." State v. Brent, 137 N.J. 107, 118-19 (1994). A jury charge on such a lesser-included offense must be provided even if it is inconsistent with defendant s defense theory. Id. at 118 (citing State v. Powell, 84 N.J. 305, 317 (1980)). Failure to so instruct the jury, when the defendant requests that a lesser-included offense be charged, for which a rational basis exists in the record, "warrants reversal of the defendant s conviction." Ibid. (citing State v. Crisantos, 102 N.J. 265, 273 (1986)).

Moreover, "[a] trial court is obligated to charge lesser offenses 'when the facts "clearly indicate" the appropriateness of that charge,' irrespective of the parties' wishes." State v. Perry, 124 N.J. 128, 193 (1991) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). A trial judge "has an independent obligation" to instruct the jury on lesser-included offenses when the evidence "clearly indicate[s] that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004) (citing State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)). "What must be clearly indicated, however, is a rational basis in the evidence. A lesser included offense must be charged if there is a rational basis in the evidence to support such a charge." Perry, supra, 124 N.J. at 193 (citing Crisantos, supra, 102 N.J. at 271-73. Charging a lesser-included offense should not "cause complete surprise, or [be] so inconsistent with the defense as to undermine the fairness of the proceedings[.]" Garron, supra, 177 N.J. at 181.

An offense is an included offense when, relevant here, "[i]t consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein[.]" N.J.S.A. 2C:1-8(d) (emphasis added). This statute, on its face, "constitutes express notice to [a] defendant that he may be charged with conspiracy as an included offense." State v. LeFurge, 101 N.J. 404, 415 (1986). Therefore, the statute "serves the same purpose as the indictment" and "[c]onsistent with notions of due process and fairness, the statute provides adequate notice to all defendants that they may be required to defend against the charge of conspiracy to commit the substantive offenses for which they have been indicted." Id. at 415-16.

In this case, defendant was originally charged under count one with first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1). Conspiracy to commit armed robbery is a lesser-included offense of the crime charged. See N.J.S.A. 2C:1-8(d). Because the evidence clearly indicated that the jury could convict on the lesser offense while acquitting on the greater offense, Judge Haas properly instructed the jury on conspiracy to commit armed robbery as a lesser-included offense of armed robbery. Accordingly, we affirm defendant's conviction of conspiracy to commit armed robbery.

III.

Defendant contends in Point II that his conviction on count six of certain persons not to possess weapons was inconsistent with his acquittal on count three of possession of a weapon for an unlawful purpose. He also contends that because the State dismissed count four, the possession of a weapon for an unlawful purpose charge, trying him first on count three, the unlawful possession of a weapon charge, then if guilty, trying him on count six, the certain persons not to have weapons charge, constituted double jeopardy. Both of these contentions lack merit.

Defendant was charged with possession of a weapon for an unlawful purpose pursuant to N.J.S.A. 2C:39-4(a), which provides that "[a]ny person who has in his possession any firearm with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree." Defendant was charged with, and tried separately for, certain persons not to have weapons pursuant to N.J.S.A. 2C:39-7(b), which provides that "[a] person having been convicted in this State or elsewhere of [certain enumerated crimes] who purchases, owns, possesses or controls a firearm is guilty of a crime of the second degree[.]"

The two statutes contain different elements: N.J.S.A. 2C:39-4(a) requires that the defendant have a purpose to use the firearm unlawfully against another person or another person's property, whereas N.J.S.A. 2C:39-7(b) merely requires that the defendant possess the firearm after having been previously convicted of certain enumerated crimes. Therefore, if, such as here, a jury does not find that the defendant had a purpose to use the firearm unlawfully, it could still find, without being inconsistent, that a defendant possessed the firearm after having previously been convicted of an enumerated offense.

Nor are there any double jeopardy concerns. Defendant was not being prosecuted for a second time after acquittal or conviction of the same offense and did not receive multiple punishments for the same offense. See State v. Cuneo, 275 N.J. Super. 16, 21 (App. Div. 1994) (holding that double jeopardy bars a second prosecution of the same offense after acquittal or conviction as well as multiple punishments for the same offense). He was tried for two separate offenses. Thus, there was no error in his conviction for certain persons not to have weapons.

IV.

Defendant contends for the first time on appeal in Point III that the jury in the bifurcated trial on the certain persons not to have weapons charge was improperly told to consider evidence in the prior trial about his alleged unlawful possession of a weapon without a bad acts limiting instruction. We disagree.

We review this contention under the plain error standard of review. R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971). We will reverse on the basis of an unchallenged error only if it was "clearly capable of producing an unjust result." Macon, supra, 57 N.J. at 337. To reverse for plain error, we must determine that there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." Id. at 336. We discern no error here, let alone plain error.

N.J.R.E. 404(b) governs the use of other crimes evidence and provides as follows

evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[N.J.R.E. 404(b) (emphasis added).]

To be admissible and to prevent overuse of other crimes evidence, prior bad acts evidence must comport with the following standard

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992).]

N.J.R.E. 404(b) excludes bad acts evidence when used to show a defendant's disposition and his action in conformity therewith. Therefore, evidence may be presented to prove a fact in issue. See Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 404(b) (2015).

Here, the State did not use the prior evidence of defendant's alleged unlawful possession of a weapon to show his disposition and his action in conformity therewith in owning or possessing a weapon. Rather, the State used the evidence to show defendant's possession of a weapon, which was a fact in issue at the bifurcated trial where the jury had to determine whether defendant, a convicted felon, purchased, owned, possessed, or controlled a firearm pursuant to N.J.S.A. 2C:39-7(b).

Moreover, the other crimes evidence met all of the Cofield factors. It was relevant to a material issue, as indicated above, defendant's possession of a weapon occurred at the same time as the crime charged and concerned an armed robbery, and the crime charged contained the element of possession or control of a firearm. In addition, the other crimes evidence was clear and convincing, especially given the fact that defendant was convicted of conspiracy to commit robbery with a handgun, and its probative value was not outweighed by its prejudice, given that it was used to establish an element of the crime charged. Therefore, a limiting instruction was not necessary.

V.

In Point IV, defendant challenges his consecutive sentence on the certain persons not to have weapons conviction. He contends that because he was acquitted of possession of a weapon for an unlawful purpose, the record did not support Judge Haas' finding to support the consecutive sentence that he took possession of the gun during the robbery. Defendant also contends that "virtually all" of the Yarbough4 factors weighed in favor of concurrent sentences, and the aggregate fifteen-year sentence and eleven-year parole bar is almost the same sentence he would have received if the jury found him guilty of first-degree robbery.

We review a judge's sentencing decision under an abuse of discretion standard. See State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, we must determine whether

(1) the sentencing guidelines were violated;

(2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)) (internal quotation marks omitted).]

We have considered defendant's contentions in light of the record and applicable legal principles and conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons Judge Haas expressed at sentencing. We are satisfied that the judge did not violate the sentencing guidelines and the record amply supports his findings on aggravating and mitigating factors and the Yarbough factors. The sentence is clearly reasonable and does not shock our judicial conscience.

VI.

Defendant contends for the first time in Point V that Judge Haas improperly ordered restitution to Walmart without an ability to pay hearing. We have considered this contention in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.

At sentencing, restitution in the amount of $38,260.38 was discussed in defendant's presence before the judge imposed the sentence. Defendant did not oppose paying restitution, indicate he was unable to pay, contest the amount, or request an ability to pay hearing. In fact, defendant asked the judge to consider restitution as a mitigating factor, which the judge did. A defendant who does not contest the amount of restitution or dispute his ability to pay is not entitled to an ability to pay hearing. State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994).

Affirmed.

1 This name is fictitious.

2 A store manager described the "war wagon" as a wooden box encasing a shopping cart with a slot on the top and a bolt lock, into which Walmart employees deposited money from each register when closing at the end of the night.

3 We use initials to identify the witnesses to the robbery to protect their identities.

4 State v. Yarbough, 100 N.J. 627, 630, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), superseded by statute, L. 1993, c. 223, 1, as recognized in State v. Eisenman, 153 N.J. 462, 478 (1998) (Yarbough, supra, "superseded by statute [N.J.S.A. 2C:44-5(a)] to the extent that it recommended an overall outer limit on the cumulation of consecutive sentences for multiple offenses.").