Opinion
DOCKET NO. A-3810-12T3
05-10-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY WRIGHT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel; Jacqueline E. Turner, Assistant Deputy Public Defender, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Leone. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-08-0725. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel; Jacqueline E. Turner, Assistant Deputy Public Defender, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Gregory Wright appeals his August 29, 2012 judgment of conviction. We affirm.
I.
The following facts are drawn from the trial testimony and exhibits, which included security video DVDs. On May 7, 2008, a pharmacist, a supervisor, and another store employee were working the overnight shift at a CVS pharmacy in Rahway. At 3:46 a.m., defendant entered the pharmacy with another male, co-defendant Courtney W. Abrams. Co-defendant Clifford H. Skeene soon joined them in the store. All three defendants had worked together at a CVS pharmacy in Union City, and Skeene was wearing a CVS shirt.
The indictment lists his last name as "Abrahams."
Defendant approached the store employee from behind and grabbed his shirt. Defendant pointed a black handgun at the employee and said "don't do anything stupid." Holding the back of the employee's shirt and shoving the gun into his side, defendant forced the employee to walk to the back of the pharmacy near the bathrooms. The security video recording defendant's actions showed him holding an object in his hand.
Meanwhile, Abrams approached the supervisor and pulled out a black and silver handgun. The supervisor yelled to the pharmacist to call the police. Abrams grabbed the supervisor and pushed her toward the office.
As she was being led to the office, the supervisor saw that defendant was carrying a gun, confronting the employee, and forcing him to walk with his hands up to the rear of the store. The supervisor called for help, and Abrams hit her in the face with his handgun and threatened to shoot her.
Defendant and Abrams forced the now-bleeding supervisor and the employee into the bathroom area. Abrams then brought the pharmacist to the bathroom area. Abrams forced the supervisor to give him keys to the cash drop-box. Abrams then gave the keys to defendant.
Defendant ran to the front of the store while Abrams yelled "get the money." Defendant apparently gave the keys to Skeene, who then emptied approximately $500 from the cash drop-box into a bag. Defendant returned to the rear of the store after a few minutes, yelling that "the cops" had arrived.
Defendant and Abrams fled out the back of the store. Skeene was able to walk out the front door because the police initially believed he was an employee of the pharmacy. However, all three defendants were later identified from the security videos.
Defendant testified at trial as follows. He had worked with his co-defendants at the Union City CVS. They went into the Rahway CVS to get a snack, and he heard people in the back of the store arguing and saying "call the police." He approached the store employee from behind, tapped him, said he was not going to hurt the employee, and stated he wanted to find out what was happening at the back of the store. He and the employee walked to the back and found Abrams with his hand over the supervisor's mouth. Defendant ran to the front of the store and told Skeene, who told him to get the keys. Defendant returned to the back and saw Abrams with a gun leading the pharmacist to the area where the other two employees were being held. Abrams gave defendant a lanyard with keys, which defendant thought were the keys to their car. Defendant found Skeene behind the counter and gave him the keys, which Skeene used to open the cash drop-box. Defendant then ran out the back, and caught a bus. Defendant denied possessing a handgun.
The three defendants were charged with first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a firearm for unlawful purposes, N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Abrams was also charged with aggravated assault. Abrams was never apprehended, and Skeene pled guilty prior to trial. Defendant was tried alone. The jury convicted him on all three counts.
The trial court merged the weapons counts into the robbery count, sentenced defendant to twelve years in prison, and required service of 85% of that sentence before parole eligibility under N.J.S.A. 2C:43-7.2. Defendant appeals, arguing:
POINT I — THE TRIAL JUDGE ERRED IN FAILING TO MAKE CLEAR TO THE JURY THAT THE DEFENDANT AND HIS CO-DEFENDANTS COULD BE ACCOMPLICES BUT BE GUILTY OF DIFFERENT DEGREES OF ROBBERY. (Not Raised Below).
POINT II — THE DEFENDANT'S SENTENCE IS EXCESSIVE.
II.
Defendant claims the trial court erred in instructing the jury. However, after court and counsel had a conference to review the jury charges, the court asked if counsel was "satisfied with those charges?" Defendant's counsel replied: "Defense is satisfied, Judge." Thus, at the very least, defendant must show plain error under Rule 2:10-2. See State v. Munafo, 222 N.J. 480, 487 (2015). He must demonstrate "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014) (quoting State v. Adams, 194 N.J. 186, 207 (2008)). We must hew to that standard of review.
Generally, "trial counsel's failure to request an instruction gives rise to a presumption that he did not view its absence as prejudicial to his client's case." State v. McGraw, 129 N.J. 68, 80 (1992). A claim of prejudice "'must be evaluated in light of the totality of the circumstances — including all the instructions to the jury, [as well as] the arguments of counsel.'" Adams, supra, 194 N.J. at 207 (citation omitted). An "error in a jury instruction that is 'crucial to the jury's deliberations on the guilt of a criminal defendant' is a '"poor candidate[] for rehabilitation" under the plain error theory.' Nevertheless, any alleged error also must be evaluated in light 'of the overall strength of the State's case.'" State v. Burns, 192 N.J. 312, 341 (2007) (citations omitted); accord State v. Walker, 203 N.J. 73, 90 (2010).
Defendant asserts that even if he was a participant in the robbery, he could have been unarmed and unaware that his accomplice was armed. He alleges that the trial court's accomplice instructions failed to differentiate between second-degree robbery, and first-degree robbery where an actor "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). He cites State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993), a murder case, where we held that when an accomplice instruction is given and "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.'" Id. at 528 (quoting State v. Weeks, 107 N.J. 396, 410 (1987).
Our Supreme Court has "adopted, with approval, Bielkiewicz's analysis." State v. Ingram, 196 N.J. 23, 39 (2008). Under Bielkiewicz, if the jury is instructed as to lesser-included offenses, any "jury instructions on accomplice liability must include an instruction that a defendant can be found guilty as an accomplice of a lesser included offense even though the principal is found guilty of the more serious offense." State v. Norman, 151 N.J. 5, 37 (1997).
Bielkiewicz has been extended to cases charging robbery. Where the jury is instructed on both accomplice liability and lesser-included offenses, the jury must be told that "an accomplice who does not have a shared purpose 'to commit a robbery with a weapon' is guilty of robbery — not armed robbery." State v. Whitaker, 200 N.J. 444, 459 (2009) (quoting Weeks, supra, 107 N.J. at 405). Thus, the trial court here should have "additionally charged the jury according to Bielkiewicz's mandate." Ingram, supra, 196 N.J. at 41; see, e.g., State v. Walton, 368 N.J. Super. 298, 306-08 (App. Div. 2004); State v. Harrington, 310 N.J. Super. 272, 279 (App. Div.), certif. denied, 156 N.J. 387 (1998).
The trial court instructed the jury on accomplice liability using the Model Jury Charge (Criminal), "Liability For Another's Conduct (N.J.S.A. 2C:2-6) Charge # One" (1995). However, Model Jury Charge (Criminal), "Liability For Another's Conduct (N.J.S.A. 2C:2-6) Charge # Two" (1995) [hereinafter "Charge # Two"] is designed for use "[w]here defendant is charged as accomplice and jury is instructed as to lesser included charges," and "is intended to address circumstances similar to those in State v. Bielkiewicz[.]" Charge # Two, supra, at 1 & n.1. Thus, the trial court should have used Charge # Two, modified to reflect the difference between first- and second-degree robbery. See, e.g., State v. Latney, 415 N.J. Super. 169, 174 (App. Div. 2010).
However, such an error may "not have been clearly capable of producing an unjust result." Weeks, supra, 107 N.J. at 405. In Ingram, the jury was not properly instructed under Bielkiewicz that the defendants alleged to be accomplices to a robbery could be found guilty only of intending the lesser-included offense of theft. Ingram, supra, 196 N.J. at 36-37. Nonetheless, our Supreme Court reinstated their robbery convictions, ruling:
[W]here the indictment substantively charged defendant with both the greater and lesser-included offenses, and the trial court properly instructed the jury in respect of each, the evil Bielkiewicz seeks to guard against — that is, that the jury could have found that one or more of the defendants were guilty of robbery while also finding that one or more of the defendants were guilty only of the lesser-included offense of theft — does not pose the same risk.
[Id. at 40.]Accordingly, the Supreme Court concluded in Ingram:
[I]t was not reversible error when the trial court instructed the jury on the elements of the offenses of robbery and theft, together with the elements required for accomplice liability, without also specifically charging that "[o]ur 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" and that "[t]he 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."
[Ibid. (quoting Charge # Two, supra.).]
Applying the Ingram principles here, we find defendant has failed to show prejudice. The trial court properly instructed the jury with respect to both first-degree and second-degree robbery, using the Model Jury Charge (Criminal), "Robbery In The First Degree (N.J.S.A. 2C:15-1)" (2010). Moreover, though the indictment charged defendant simply with first-degree robbery, the court's verdict sheet gave the jury the option of convicting defendant of either first-degree or second-degree robbery for each of the victims. Specifically, for each victim, the verdict sheet asked (1) whether defendant was guilty of "Robbery"; and (2) whether "defendant used a deadly weapon or was armed with and/or threatened the immediate use of a deadly weapon." Thus, the Bielkiewicz error here "was not reversible error." Ibid.
Contrary to defendant's claim, the trial court did instruct the jury that "[a]n accomplice may be convicted on proof of the commission of a crime or his complicity therein, even though the person who it is claimed committed the crime has not been prosecuted or convicted, or has been convicted of a different offense or degree of offense[.]"
Other factors support the conclusion that defendant failed to show prejudice here. First, the jury found that "defendant used a deadly weapon or was armed with and/or threatened the immediate use of a deadly weapon" against the employee and the supervisor. Moreover, the jury convicted him of possession of a firearm for an unlawful purpose, and unlawful possession of a handgun. As no accomplice instruction was given regarding those weapons offenses, the jury could convict defendant of those offenses only if it concluded he himself was armed with a handgun for the purpose of committing the robbery. Thus, the jury's verdicts show that the jury found defendant committed armed robbery as a principal.
Second, the jury's verdicts that defendant committed armed robbery as a principal against these two victims corresponded to the State's evidence. The employee and the supervisor both testified that defendant was armed with and used a handgun during the robbery, making him a principal as to both victims. Their testimony was strong, and was corroborated by the video evidence that defendant had an object in his hand while he was forcing the employee to the rear of the store. The strength of the State's evidence reduces the chance of prejudice. See State v. Sheika, 337 N.J. Super. 228, 251-52 (App. Div.) (finding there was no prejudice where "the evidence was overwhelming"), certif. denied, 169 N.J. 609 (2001).
Third, the jury convicted defendant only of second-degree robbery of the pharmacist, finding he did not commit armed robbery against her. Again, the jury's verdict fit the testimony of the State's witnesses, who did not claim defendant used a gun against the pharmacist or that the pharmacist saw his gun. The central concern of Bielkiewicz, supra, is that "[i]f a trial court submits lesser included offenses to the jury but fails to give accurate and complete instructions regarding accomplice liability for these lesser offenses, there is a . . . risk that the jury will compromise on a guilty verdict for the greater offense." 267 N.J. Super. at 534. Here, the jury showed it was willing and able to convict only of the lesser offense where there was no testimony defendant committed an armed robbery against a victim.
The only person who suggested that anyone used a gun against the pharmacist was defendant, whose testimony the jury obviously did not believe.
Fourth, defendant was not tried with his co-defendants. While "[t]he fact defendant was tried alone is not dispositive," State v. Franklin, 377 N.J. Super. 48, 57 (App. Div. 2005), that fact makes it a more "remote possibility that they were distracted from their task by a conclusion that the principal had possessed a more culpable intent than the accomplice." Norman, supra, 151 N.J. at 39.
Fifth, both of the State's eyewitnesses testified that defendant saw that Abrams was armed with a gun and used it against the supervisor. Thus, even if the jury had considered defendant's liability as an accomplice, the State's evidence supported that defendant shared Abram's "purpose to promote or facilitate that crime, namely, robbery with the use of a firearm." State v. White, 98 N.J. 122, 130 (1984).
Even defendant conceded he had seen Abrams pointing a gun at the supervisor. --------
Even if the judge should have instructed the jury that it could convict defendant of the lesser included offense of second degree robbery as [an] accomplice if it found that defendant's purpose was only to participate in the robbery, and not to commit armed robbery, the failure to give a Bielkiewicz charge is not plain error . . . [if] there was no evidence presented that the principal may have acted with a different purpose than the accomplice.
[State v. Oliver, 316 N.J. Super. 592, 597 (App. Div. 1998), aff'd, 162 N.J. 580 (2000); see also Norman, supra, 151 N.J. at 37-38.]
Last, but not least, defendant did not claim he was a participant in the robbery but intended it to be unarmed. Instead, he testified, and his counsel repeatedly argued, that he never intended to participate in the robbery. While this does not "eliminate[] the possibility that a faulty accomplice liability charge could have prejudiced him," State v. Cook, 300 N.J. Super. 476, 488 (App. Div. 1996), it does reduce the likelihood. Where "a defendant argues that he was not involved in the crime at all," that helps to show the "defendant suffered no prejudice" from a failure to instruct the jury on accomplice liability under Bielkiewicz. State v. Maloney, 216 N.J. 91, 105-06, 109-10 (2013); State v. Rue, 296 N.J. Super. 108, 115-16 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997).
Considering the totality of the circumstances, including all the instructions to the jury, the arguments of counsel, the strength of the State's case, the nature of the defense, the verdict sheet, and the jury's verdicts, we find defendant failed to show that the omission of the Bielkiewicz language from the accomplice instruction was "clearly capable of producing an unjust result." R. 2:10-2. The absence of prejudice is confirmed by trial counsel's failure to request a Bielkiewicz instruction or to object to the instructions given. Thus, defendant has failed to show plain error.
III.
Defendant next claims that his sentence was excessive. "It is well-established that appellate courts review the trial court's 'sentencing determination under a deferential standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015) (citation omitted). This court is "'bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" Ibid. (citation omitted).
Defendant faced a maximum sentence of up to twenty years for first-degree robbery. N.J.S.A. 2C:43-6(a)(1). The trial court found aggravating factor three, a "risk that the defendant will commit another offense." N.J.S.A. 2C:44-1(a)(3). It also found aggravating factor nine, a "need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(9). The court found mitigating factor seven, "defendant has no history of prior delinquency or criminal activity [and] has led a law-abiding life for a substantial period of time before the commission of the present offense." N.J.S.A. 2C:44-1(b)(7). The court found the aggravating factors "outweigh the mitigating factors somewhat." Nonetheless, the court gave defendant only twelve years because he was "somewhat a follower in this" planned robbery.
Our Supreme Court does "not presume that aggravating factor three cannot coexist with mitigating factor seven," the absence of a prior record. State v. Case, 220 N.J. 49, 67 (2014). The Court has "decline[d] to find that aggravating factor nine is inappropriate in a case in which the defendant had no prior record, and the sentencing court accordingly applies mitigating factor seven." State v. Fuentes, 217 N.J. 57, 80 (2014).
On appeal, defendant argues the trial court should have found mitigating factor eight, that "defendant's conduct was the result of circumstances unlikely to recur." N.J.S.A. 2C:44-1(b)(8). However, the court reached the opposite conclusion by finding aggravating factor three, and "aggravating factor nine and mitigating factor eight rarely apply in the same sentencing." Id. at 79-80.
The trial court was aware of the other mitigating facts defendant now cites, including that defendant had a wife and children. Defendant did not show that his imprisonment "would entail excessive hardship to himself or his dependents," as required by N.J.S.A. 2C:44-1(b)(11). We see no basis to overturn the trial court's exercise of sentencing discretion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION