Opinion
DOCKET NO. A-1818-12T2
03-25-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TROY J. WASHINGTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-02-0273. Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Troy Washington appeals from his conviction, after a jury trial, of first-degree armed robbery, N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4; and disorderly persons simple assault, N.J.S.A. 2C:12-1(a), as a lesser-included offense. Defendant was acquitted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).
The trial court dismissed the charge of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), on a motion at the end of the State's case.
Defendant argues that the court erred in not sua sponte charging the jury with the offense of theft of receiving stolen property, and his sentence was excessive. Having reviewed defendant's arguments in light of the record and applicable law, we affirm.
I.
The State presented its case through the testimony of Dana Valeri, Lake Estates Condominium Assistant Property Manager, Emelinda Owens, Lake Estates Condominium resident, and three East Brunswick policemen, Officer Crispin Farrace, Detective Michael Smith, and Sergeant Sean Googins. The facts pertinent to this appeal are as follows.
On September 3, 2010, a man entered the office of the Lake Estates Condominium Association and told Valeri that he was looking to rent an apartment unit based upon a referral from someone who worked for FedEx. Valeri told him there were no units available to rent. However, before leaving she had him write down his name and phone number to possibly contact him if a vacancy arose. Suspecting the man was referred by Owens, a Lake Estates resident Valeri believed worked for FedEx, Valeri sent Owens an email with a description of the man to confirm the reference. Owens replied that she did not refer anyone to rent an apartment. Owens testified that based on the email description, she believed the man was someone she knew as "True."
About two hours later, the man returned to the office. He asked for a business card and permission to use the bathroom. After using the bathroom, the man approached Valeri with a six-inch knife in his hand and demanded money that was stored in a locked cabinet. Valeri cooperated and gave him approximately $2,500 to $3,000. After turning over the money, the man, for no apparent reason, shoved her into a bathroom causing bruises on her body and a bump on her head, and then left the office.
Valeri subsequently called the police, and once they arrived at the office, she told them what happened. The police took pictures of the crime scene and were able to obtain fingerprints from the notebook in which the assailant had written his name and phone number. The fingerprints were found to be a match for defendant. About three weeks later, Valeri identified defendant in a photo array at the police station, stating she was eighty percent sure that he was the man who robbed her. Valeri also made an in-court identification of defendant. In addition, Owens identified defendant in a photo array and in-court as the man she knew as True.
Defendant testified on his own behalf at trial. He asserted that he did not rob Valeri, but she was party to a "scheme" with Owens to steal money from Lake Estates. He arranged with Owens and her boyfriend that he would go to the office to pick up money from Valeri. When defendant first went into the office, Valeri told him to write his name and phone number down on notebook so she could call him later when it was time to get the money. Defendant testified that he returned to the office after speaking with Owens and was given the money by Valeri. He denied having a knife with him and touching or pushing Valeri. He claimed that he kept $700 of the money with the remaining amount split between Owens and Valeri.
In addition to the aforementioned charges of armed robbery, unlawful possession of a weapon, possession of a weapon for unlawful purposes, the jury was also charged lesser-included offenses of theft from the person, N.J.S.A. 2C-2(b)(2)(d), and theft by unlawful taking, N.J.S.A. 2C:20-3.
Defendant was subsequently sentenced to fifteen years with an eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(c), for the merged robbery and weapons offenses, and a consecutive six-month term for the simple assault offense. The court found aggravating factors: (3) "[t]he risk that the defendant will commit another offense", N.J.S.A. 2C:44-1(a)(3); (6) "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted", N.J.S.A. 2C:44-1(a)(6); and (9) "[t]he need for deterring the defendant and others from violating the law", N.J.S.A. 2C:44-1(a)(9). The court also determined that there were no mitigating factors present, but that even if there were, the aggravating factors "substantially outweigh[ed] any possible mitigating factor." The court noted that it was originally going to sentence defendant to eighteen years, but instead, gave "great weight" to the prosecution's suggestion of fifteen years, finding it was a "fair" outcome. Defendant was also given a six-month consecutive sentence for simple assault based upon the finding that it was independent of and unrelated to the robbery.
Following his conviction and sentencing, defendant raised two points on appeal:
POINT I
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURORS ON THEFT BY RECEIVING STOLEN PROPERTY, AS A LESSER INCLUDED OFFENSE OF ROBBERY, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947). ART I, PARS. 1, 9, 10. (NOT RAISED BELOW).
POINT II
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
In a pro se supplemental brief, defendant contends:
PONIT I
THE TRIAL COURT'S FAILURE TO SUA SPONTE INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF RECEIVING STOLEN PROPERTY IS REVERSIBLE ERROR AND DEPRIVED DEFENDANT OF RIGHT TO DUE PROCESS AND A FAIR TRIAL.
II.
Defendant's argument that the trial court erred in failing to instruct the jury on theft by receiving stolen property, a lesser-included offense of robbery, is premised on his testimony that he was guilty of theft by receiving stolen property but not robbery. He testified that he did not rob Valeri at knifepoint, she gave him the money as part of a scheme orchestrated by her and Owens to steal from Lake Estates. Defendant claims that without the jury instruction on the lesser-included offense of theft by receiving stolen property, he was prejudiced because the jury could not consider his defense theory. The jury was left with an "unfair choice" of "conviction of robbery or acquittal."
Although he did not request the theft of receiving stolen property charge, defendant argues that the trial court was obligated to "charge an uncharged offense that the defendant himself admits guilt of" under State v. Brent, 137 N.J. 107, 118 (1994). He contends that consolidation of theft statutes under N.J.S.A. 2C:20-2(a) essentially means that robbery is an "umbrella crime covering ever[y] kind of theft." He relies upon State v. Talley, 94 N.J. 385, 391 (1983), where it was held that due to the consolidation of theft statues under N.J.S.A. 2C:20-2(a), it was proper for the trial court to charge the jury with theft by deception based upon the defendant's testimony despite the fact that the defendant was only indicted for robbery. Defendant also argues that State v. Jenkins, 178 N.J. 347, 361-64 (2004), stands for the proposition that "where the evidence clearly raises an issue justifying a finding of the included offense, it must be charged by the judge even without request." We are unpersuaded by defendant's arguments.
It is essential for a fair trial that "[a]ppropriate and proper charges" be given to the jury. State v. Green, 86 N.J. 281, 287 (1981). "When a defendant requests submission to the jury of a lesser included offense, the [trial] court is obligated to examine the record and determine whether a rational basis exists for the jury to acquit the defendant of the charged offense and convict him of the lesser offense." State v. Harris, 357 N.J. Super. 532, 539 (App. Div. 2003) (citing Brent, supra, 137 N.J. at 113-14). However, a defendant who does not request that the court charge a lesser-included offense, waives his right to object on appeal and we review the challenge under the plain error standard. R. 2:10-2; State v. Maloney, 216 N.J. 91, 104 (2013). The Court has said:
In the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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."Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
[State v. Burns, 192 N.J. 312, 341 (2007) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
The factors a court must consider to determine whether a lesser-included offense should be charged were set forth in State v. Thomas, 187 N.J. 119 (2006). There, the Court held "whether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to support a charge on that included offense." Thomas, supra, 187 N.J. at 131. Pursuant to N.J.S.A. 2C:1-8(d), a lesser-included offense occurs when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
In State v. Maloney, 216 N.J. 91 (2013), the Court directly addressed whether theft by receiving stolen property is a lesser-included offense of robbery. The Court rejected the defendant's argument that he was entitled to a jury charge on the lesser-included offense of theft by receiving stolen property where he denied planning the armed robbery but claimed that he agreed to meet a co-defendant to pick up a portion of the robbery proceeds. Id. at 95. The court is not required to give an instruction on the alternative theory that defendant could be considered an accomplice where the State's evidence only accuses defendant as a principal of the crime. Id. at 106. (citing State v. Crumb, 307 N.J. Super. 204, 221-24 (App. Div. 1997), cert. denied, 153 N.J. 215 (1998); State v. Oliver, 316 N.J. Super. 592, 597 (App. Div. 1998), aff'd, 162 N.J. 580 (2000); State v. Rue, 296 N.J. Super. 108, 115-16, (App. Div. 1996), certif. denied, 148 N.J. 463 (1997).
Although the Court in Maloney was concerned with attempted theft and conspiracy to receive stolen property, it analyzed the issue as if the offense charged was theft by receiving stolen property. Maloney, supra, 216 N.J. at 110.
In analyzing the statutory elements of the offenses of robbery and theft by receiving stolen property, the Court noted that the offenses do "not overlap" and that as such, theft by receiving stolen property is not a lesser-included offense of robbery. Id. at 110. Robbery is committed in the course of committing a theft, when a person: "(1) [i]nflicts bodily injury or uses force upon another; or (2) [t]hreatens another with or purposely puts him in fear of immediate bodily injury; or (3) [c]ommits or threatens immediately to commit any crime of the first or second degree." Id. at 108 (citing N.J.S.A. 2C:15-1(a)). On the other hand, a person is guilty of theft by receiving stolen property, if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. Ibid. Simply put, robbery involves the "use of force or threatened use of force against the victim," whereas receiving stolen property is an offense against property. Id. at 110.
We thus conclude that in accordance with Maloney, and despite defendant's testimony, there was no plain error in the trial court's failure to sua sponte charge the jury with the offense of theft by receiving stolen property. Receiving stolen property is not "established by proof of the same or less than all the facts required to establish the commission" of robbery as required by N.J.S.A. 2C:1-8(d)(1) to be considered a lesser-included offense. These offenses have separate and distinct elements that must be proved. As defendant cannot satisfy the first prong of Thomas that the requested charge is an included offense set forth in N.J.S.A. 2C:1-8(d), we need not address the second prong that there be a rational basis in the evidence to support a charge on that included offense. Thomas, supra, 187 N.J. at 131.
Further, contrary to defendant's contention, the jury did not have only the "unfair choice" of finding defendant guilty of robbery or acquitting him. The trial court also charged the jury that if it did not find defendant guilty of robbery, it could find defendant guilty of the lesser-included offenses of theft of money from the person or theft by unlawful taking.
A person is guilty of theft from the person or theft by unlawful taking, "if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." N.J.S.A 2C:20-2(b)(2)(d); N.J.S.A 2C:20-3.
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Under the circumstances of this case, we conclude the lack of a jury charge of the offense of theft by receiving stolen property did not amount to plain error.
III.
Defendant's contention that his sentence is excessive is based upon two arguments, failure to consider mitigating factors, and improper imposition of a consecutive sentence.
Defendant contends several mitigating factors should have been considered to give him less than a fifteen-and-a-half year NERA sentence. His lack of criminal record since a prior conviction in 1998 demonstrated the he 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), and that the underlying circumstances were unlikely to recur," N.J.S.A. 2C:44-1(b)(8). His family support and expression of remorse made him "unlikely to commit another offense." N.J.S.A. 2C:44-1(b)(9). And a lengthy imprisonment "would entail excessive hardship" to his family. N.J.S.A. 2C:44-1(b)(11).
We discern no error in the court's exercise of its sentencing authority. "When the aggravating and mitigating factors are identified, supported by competent, credible evidence in the record, and properly balanced, we must affirm the sentence and not second-guess the sentencing court, . . . provided that the sentence does not shock the judicial conscience." State v. Case, 220 N.J. 49, 65 (2014) (internal quotation marks and citations omitted). Here, the judge's findings of three aggravating factors was based upon credible evidence, including defendant's two prior robbery offenses, a juvenile disposition and an adult conviction. The court considered that the present offense occurred approximately seven years after defendant was released from prison on the adult conviction. Defendant presents no evidence which indicates the court erred in finding that no mitigating factors applied to counter-balance the aggravating factors that were applied.
Defendant next contends that the simple assault offense was related and not independent to the robbery, and he should not have received a sentence consecutive to the robbery sentence. The decision to impose a consecutive or concurrent sentence is guided by State v. Yarbough, 100 N.J. 627 (1985). The following standards must guide a sentencing court:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;(4) there should be no double counting of aggravating factors; [and]
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences imposed are numerous;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense[.]
[Id. at 643-44.]
The decision to impose a consecutive sentence lies within the discretion of the court, State v. Ellis, 346 N.J. Super. 583, 594 (App. Div. 2002), and the reasons must be expressly stated by the court. State v. Miller, 108 N.J. 112, 122 (1987).
In this case, the six-month consecutive sentence imposed for simple assault, was an appropriate exercise of the trial court's discretion under Yarbough. The court found the act of assaulting Valeri was independent of the robbery. Defendant gratuitously assaulted her when he shoved her in the bathroom after she cooperated with his demands to give him the money.
In sum, the trial court's sentences are in harmony with our sentencing guidelines. There was no abuse of discretion and the sentences imposed do not shock our judicial conscience. Accordingly, the sentences should not be modified.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION