STATE OF NEW JERSEY v. ALLEN ALEXANDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2682-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALLEN ALEXANDER, a/k/a KARON

KEENAN,

Defendant-Appellant.

_________________________________

October 18, 2016

Submitted September 27, 2016 Decided

Before Judges Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-10-2567.

Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, 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 brief).

PER CURIAM

Defendant appeals from his convictions for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(b); first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). We reverse and remand for a new trial.

The victim and defendant testified during the trial about an incident that occurred on the victim's way to work. The incident involved two men who approached the victim as he walked down a long corridor leading towards a train station. The victim and defendant gave different testimony about what happened.

The victim testified that defendant grabbed him by the neck and told another person (the friend) to cut his face. According to the victim, while defendant continued grabbing him, the friend asked the victim for money. After the victim stated he only had enough money for the train, the friend stabbed the victim in the forehead. The victim testified that defendant and the friend walked away from him without taking any money. Surveillance cameras in the area of the incident captured some, but not all, of the interaction among the victim, defendant, and the friend.

At trial, defendant acknowledged he had a verbal confrontation with the victim on the day of the incident. Defendant testified that the victim yelled profanities at him as defendant walked down the hallway singing a rap song "very loudly." This resulted in a shouting match between the victim and defendant. Defendant testified that his friend "got into the [victim's] face." Defendant testified that he grabbed his friend and said "no, don't do it. It's not worth it. It's not worth it. I'm like, leave it alone."

According to defendant, the friend then "punched [the victim] and [the victim] fell to the ground." Defendant denied talking to his friend about taking money from the victim. Defendant explained he had no discussion with anyone leading up to the incident because defendant was singing. Defendant stated he did not try to take money from the victim. Defendant testified that he did not possess a weapon, and stated that he did not see his friend using a weapon. Defendant stated that after his friend punched the victim, he and his friend walked away.

The judge merged the conspiracy conviction into the robbery conviction and sentenced defendant to fifteen years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed five and eighteen-month prison terms on the weapons convictions, concurrent to each other and the robbery conviction. The aggregate prison term was fifteen years, subject to NERA.

On appeal, defendant raises the following points

POINT I

THE TRIAL COURT ERRED BY FAILING TO CHARGE THE JURY ON THE LESSER INCLUDED OFFENSE OF AGGRAVATED ASSAULT. (Not Raised Below).

POINT II

THE PROSECUTOR'S COMMENT IN HER SUMMATION THAT NO WITNESS APPEARED TO CORROBORATE DEFENDANT'S TESTIMONY IMPROPERLY SHIFTED THE BURDEN OF PROOF TO DEFENDANT AND WAS A DELIBERATE ATTEMPT TO CIRCUMVENT AN EVIDENTIARY RULING BY THE TRIAL COURT, THUS THE COURT SHOULD HAVE DECLARED A MISTRIAL, OR AT THE VERY LEAST GIVEN AN IMMEDIATE CURATIVE INSTRUCTION.

POINT III

DEFENDANT'S SENTENCE WAS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION, REQUIRING HIS SENTENCE BE VACATED AND THE CASE REMANDED TO THE TRIAL COURT FOR A NEW SENTENCE HEARING.

I.

We begin by addressing defendant's contention as to the jury charge.

Defendant contends the judge erred by failing to charge the jury on the lesser-included offense of aggravated assault. Because defendant did not request the charge at trial, we review defendant's arguments for plain error, that is, error "clearly capable of producing an unjust result[.]" R. 2:10-2. A conviction will be reversed under this standard only if the error is "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Daniels, 182 N.J. 80, 95 (2004) (alteration in original) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). "The mere possibility of an unjust result is not enough." State v. Funderburg, 225 N.J. 66, 79 (2016).

In addition to not requesting the charge at trial, defendant did not object to its omission from the court's jury instructions. "The appropriate time to object to a jury charge is 'before the jury retires to consider its verdict.'" Funderburg, supra, 225 N.J. at 79 (quoting R. 1:7-2). "Pursuant to Rule 1:7-2, a defendant is required to challenge instructions at the time of trial or else waives the right to contest the instructions on appeal." State v. Belliard, 415 N.J. Super. 51, 66 (App. Div. 2010) (citing State v. Adams, 194 N.J. 186, 206-07 (2008)), certif. denied, 205 N.J. 81 (2011).

"Where there is a failure to object, it may be presumed that the instructions were adequate." Belliard, supra, 415 N.J. Super. at 66 (quoting State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.), certif. denied, 177 N.J. 572 (2003)). However, because "[a]ppropriate and proper charges to a jury are essential for a fair trial," State v. Daniels, 224 N.J. 168, 180 (2016), and "are especially critical . . . in criminal matters, improper instructions on material issues are presumed to constitute reversible error." State v. Jenkins, 178 N.J. 347, 361 (2004).

As to unrequested charges, a trial judge "has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Ibid. On the other hand, the judge "has no duty to instruct the jury sua sponte on an included offense charge if the evidence does not clearly indicate or warrant such a charge." State v. Rivera, 205 N.J. 472, 489 (2011) (quoting State v. Thomas, 187 N.J. 119, 132 (2006)). "[A] trial court does 'not . . . have the obligation on its own meticulously to sift through the entire record in every . . . trial to see if some combination of facts and inferences might rationally sustain a [lesser-included] charge.'" Funderburg, supra, 225 N.J. at 70 (second alteration in original) (quoting State v. Choice, 98 N.J. 295, 299 (1985)). "[T]he need for the charge must 'jump off' the proverbial page." State v. R.T., 205 N.J. 493, 510 (2011) (quoting State v. Denofa, 187 N.J. 24, 42 (2006)).

"[T]he charging of lesser-included offenses [is] governed by statute. N.J.S.A. 2C:1-8 provides that a trial 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.'" Funderburg, supra, 225 N.J. at 81 (quoting N.J.S.A. 2C:1-8(e)). "Thus, 'to justify a lesser-included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense.'" Ibid. (quoting State v. Savage, 172 N.J. 374, 396 (2002)). The evidence must clearly indicate that there is a rational basis to acquit the defendant of the greater offense, and to convict the defendant of the lesser offense.

An individual may commit second-degree aggravated assault, by either attempting "to cause serious bodily injury to another" or by "caus[ing] such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly caus[ing] such injury." N.J.S.A. 2C:12-1(b)(1). Attempted aggravated assault requires that a defendant "purposely" attempted to cause serious bodily injury. N.J.S.A. 2C:5-1(a)(1).

An individual "acts purposely with respect to the nature of his conduct or as a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result." N.J.S.A. 2C:2-2(b)(1). "An attempt is purposeful not only because it is so defined by statute, but because one cannot logically attempt to cause a particular result unless causing that result is one's conscious object, the distinguishing feature of a purposeful mental state." State v. McCoy, 116 N.J. 293, 304 (1989) (citation and internal quotation marks omitted).

In his summation to the jury, the defense counsel commented on the evidence and stated defendant's friend "did something that was totally unanticipated." Based on defendant's testimony, he emphasized that the "very short incident" was "not a robbery, but . . . was a confrontation." Defense counsel argued to the jury that "[i]t wasn't a robbery, . . . [i]t was a confrontation . . . a by-chance meeting between [the victim] and [defendant]." Defense counsel's summation focused on the lack of any evidence that the confrontation occurred during the course of committing a theft. He stated there was no evidence that defendant possessed a weapon or knew that his friend had a weapon. Defense counsel added there was no evidence that defendant conspired or acted as an accomplice to rob the victim.

Here, there is a rational basis in the evidence for the jury to acquit defendant of robbery and conspiracy to commit robbery, as well as to convict defendant of aggravated assault. The jury could have found that defendant did not participate, either directly or as an accomplice, in a theft or attempt to commit theft. Defendant testified that he told his friend not to "do it," and to "leave it alone." He also testified that he did not talk to his friend about taking money from the victim, and stated he did not attempt to take money from the victim.

However, defendant admitted he and his friend engaged in a confrontation with the victim, and the friend punched the victim hard enough for the victim to fall to the ground. The evidence therefore demonstrated that defendant, either as a principal or as an accomplice, may have committed or attempted to commit serious bodily injury by either grabbing the victim by the neck and telling the friend to cut his face, or by assisting the friend in punching the victim.

II.

We now turn to defendant's contention that the assistant prosecutor made an improper statement in her summation, and the judge failed to give a curative instruction.

The assistant prosecutor stated "[a]nd finally[,] the lack of corroboration of testimony . . . [t]he defendant testified, but who or what corroborated what he said." Defense counsel objected and argued that the statement shifted the burden to defendant to produce evidence corroborating his testimony. In other words, the comments suggested that defendant had the obligation to produce testimony from a witness supporting defendant's testimony. The judge sustained the objection, but did not give a curative instruction.

"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). For prosecutorial comments "[t]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper," and "so egregious that it deprived the defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (alteration in original) (citations and internal quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Applying these well-settled standards, we conclude that although the comments were improper, the assistant prosecutor's conduct was not so egregious as to deprive defendant of a fair trial.

Here, the fleeting comments by the assistant prosecutor "were prompted by comments in the summation of defense counsel." State v. Smith, 212 N.J. 365, 404 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). For example, on the issue of credibility, defense stated that testimony from a security guard at the trial corroborated defendant's testimony that he returned to the scene on his way to the train on the way to the beach. Defense counsel argued that this corroboration implied defendant would not have gone back to the scene if he had robbed the victim.

"Whether testimony or a comment by counsel is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters 'peculiarly within the competence of the trial judge.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 647 (1984)). Defense counsel did not request a curative instruction. And the judge's final charge to the jury adequately covered the issue of burdens of proof.

III.

We need not reach defendant's remaining contention, that the judge imposed an excessive sentence, because we are reversing on the jury-charge issue. For the sake of completeness, however, we see no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions). At any rate, having concluded that the evidence clearly indicates there is a rational basis to acquit the defendant of the robbery charges and to convict the defendant of aggravated assault, we set aside the convictions and sentence.

Reversed and remanded for a new trial. We do not retain jurisdiction.