STATE OF NEW JERSEY VS. LARRY DUKES (17-06-0718, MIDDLESEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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 binding only 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-4668-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LARRY DUKES a/k/a
LAKEEM DUKES, LAWRENCE
DUKES, LARRY DUKE,
TERRY T. FOWLER, TERRY
FOWLER,
Defendant-Appellant.
Argued December 16, 2020 – Decided March 26, 2021
Before Judges Alvarez and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 17-06-
0718.
Stephen F. Payerle argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney; Kelly R.
Anderson and Stephen F. Payerle, Designated Counsel,
on the briefs).
Nancy A. Hulett, Acting Assistant Prosecutor, argued
the cause for respondent (Yolanda Ciccone, Middlesex
County Prosecutor, attorney; Nancy A. Hulett, of
counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Tried by a jury, 1 defendant Larry Dukes was convicted of second-degree
robbery, N.J.S.A. 2C:15-1(a)(1) (Suzanna Paz) (count one); first-degree
robbery, N.J.S.A. 2C:15-1(a)(1) (Alberto Rodriguez) (count two); second-
degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) and 2C:15-1(a)(1)
(count four); disorderly persons simple assault, N.J.S.A. 2C:12-1(a)(1) (Paz)
(count five); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1)
(Rodriguez) (count six); third-degree possession of a controlled dangerous
substance, N.J.S.A. 2C:35-10(a)(1) (count seven); and fourth-degree resisting
arrest, N.J.S.A. 2C:29-2(a)(2) (count eight). The jury acquitted defendant of an
additional charge of second-degree robbery (Norma Ramos-Sanchez) (count
three).
On April 5, 2018, the judge granted the State's motion for mandatory
extended-term sentencing as a "[r]epeat [v]iolent [o]ffender[,]" N.J.S.A. 2C:43-
1
Defendant was tried with a co-defendant not involved in this appeal.
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2
7.1(b),2 and imposed a thirty-year term subject to the No Early Release Act's
(NERA) eighty-five percent parole ineligibility on count two, into which he
merged counts four and six. See N.J.S.A. 2C:43-7.2. The judge also merged
count five into count one, sentencing defendant to ten years, subject to NERA,
to run concurrent to the term defendant would serve on count two. Count seven,
a crime which occurred later, on the date of defendant's arrest, resulted in a
consecutive four-year term, to which the one-year sentence imposed on count
eight ran concurrent. Thus, defendant's aggregate sentence was thirty-four
years, the first thirty subject to NERA.
In imposing the sentence, the judge accorded great weight to aggravating
factors three, six, and nine, and found no factors in mitigation. He heavily
weighed the aggravating factors because of defendant's chronic drug use, failure
to comply with probation and parole, approximate forty-six arrests dating back
to 1990, at least a dozen indictable convictions, and many disorderly persons
and petty disorderly persons convictions. Defendant appeals. We affirm.
During the early morning hours of April 10, 2017, Rodriguez, Ramos-
Sanchez, and Paz left a nightclub and headed towards a restaurant. A nearby
2
Defendant had been previously sentenced for third-degree aggravated assault
in 2013 and second-degree possession of a weapon for an unlawful purpose in
1997. N.J.S.A. 2C:12-1(b); N.J.S.A. 2C:59-4.
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surveillance camera captured them on film as they passed by shortly before the
robbery. At trial, Rodriguez identified the man, seen wearing a hat, walking
behind the group almost immediately after they went out of camera range, as the
person who punched him in the head from behind, knocking him to the ground.
Paz screamed for help, somehow fell, broke her ankle, and rolled beneath a
parked car. Rodriguez attempted to get up to help her, but was struck again by
the man with a hat, this time with an object. That blow left a laceration on
Rodriguez's forehead requiring twelve stitches that left a visible scar shown to
the jury. The man with the hat demanded Rodriguez's money and searched his
pockets.
Paz testified that as a result of the ankle break, she underwent surgery, the
insertion of fifteen pins, a stay at a physical rehabilitation facility after the initial
hospital admission, and spent four months in a wheelchair. By the time of trial
in December 2017, she continued to experience pain in her foot and used a cane
to walk. Paz's recollection was that as the group was walking, someone
demanded their money. She thought the assailants were in front of the group
but could not be certain.
Ramos-Sanchez said she saw two men approach from the rear and heard
them demand money; she was sprayed in the face with an irritant. She
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immediately ran to an intersecting street, and the men chasing her turned away.
Ramos-Sanchez encountered pedestrians leaving a bar, who called the police on
her behalf. Her eye remained cloudy after the incident, although she refused
medical attention at the time.
None of the victims, who had been drinking, could identify their attackers.
Rodriguez remembered only that the man who struck him in the forehead wore
dark clothes and a cap. He initially thought he was hit with a gun, but over time
became uncertain as to the nature of the object. Rodriguez and Ramos-Sanchez
were sure there were only two assailants; Paz thought there may have been three
or four.
New Brunswick Police Sergeant Theirry Lemmerling obtained the
surveillance videos, shown to the jury, from two neighborhood stores. He
downloaded them onto a flash drive, then transferring them to a disc. During
trial, all three victims identified themselves on the video. The person walking
closest to the group as it leaves camera range was wearing a hat.
Lemmerling made still photographs from the video footage of the two men
walking behind the victims, including the man with a hat. A few days later, two
New Brunswick police officers drove by defendant standing at a corner. They
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had been shown the still photograph that morning and knew there was an
outstanding warrant for his arrest related to the robbery.
The officers stopped, and when one of them told defendant he had an
arrest warrant, defendant fled. A third officer saw defendant running, saw him
discard ten glassine envelopes containing heroin and fiorinal fentanyl, and
caught him. When arrested, defendant was carrying a can of pepper spray.
At the station, New Brunswick Police Department Detective Brandt
Gregus questioned defendant and showed him the still photo. Defendant
admitted he was the man wearing a hat walking a few paces behind the three
victims moments before the robbery. That picture was admitted into evidence
and shown to the jury when Gregus testified.
After the State rested, defendant moved for a judgment of acquittal on
counts one, two, and three—which charged first-degree robbery based on the
use of a deadly weapon or an attempt to inflict serious bodily injury. The judge
ruled, however, that the State had presented sufficient proof for first-degree
robbery on counts one and two based on defendant "inflicting serious bodily
injury or attempting to inflict serious bodily injury." As to Ramos-Sanchez,
count three, the judge determined that only second-degree robbery would be
submitted to the jury. Otherwise, the motion was denied.
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The indictment did not include the following language from the robbery
statute as an element of the offense: "[t]hreatens another with or purposely puts
him in fear of immediate bodily injury . . . ." N.J.S.A. 2C:15-1(a)(2). During
the charge conference, defense counsel objected to the jury being read the
corresponding threat-of-force portion of the model jury charge on the basis that
it would not mirror the indictment. Model Jury Charges (Criminal), "Robbery
in the First Degree (N.J.S.A. 2C:15-1)" (rev. Sept. 10, 2012); Model Jury
Charges (Criminal), "Robbery in the Second Degree (N.J.S.A. 2C:15-1)" (rev.
July 2, 2009). When asked on the record, the prosecutor could not recall why
the indictment language did not include threat of force as an element of the crime
and did not object to the omission. The judge acceded—"[I]f . . . there is an
objection to it I guess, then, we don't read it."
After the jurors began to deliberate, they posed a number of questions,
such as whether "[i]f someone is injured during the course of a crime, is the
defendant responsible?" The jurors also asked whether it was necessary for
actual physical contact to occur between perpetrator and victim in order to meet
the statutory requirements for robbery.
After consideration of the jurors' questions, and an extensive colloquy
with counsel, the judge decided to recharge the jury and explain that the threat
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of force could indeed constitute a basis for robbery. The judge opined that his
failure to have done so initially was an error of law he should correct. He said:
What I told the jury is . . . an incomplete recitation of
the law. And now I'm gonna give the jury a complete
recitation of the law.
....
[Someone] asked for money, struck my friend in
the face. And I[, Paz,] tried to get away. He may have
touched me. He may not have touched me. And I fell
to the floor. Or fell to -- she said floor. Fell to the
ground. And . . . I injured my ankle. It appears that it
was a very serious . . . injury to the ankle.
That's a threat of force. She alighted from the
scene or attempted to leave the scene trying to avoid the
robbers. And she got hurt in the process. As a result of
the use of force. The force . . . the threat of force.
Her friend was struck. She feared she was [going
to] be next. It's in the case. I should have charged it.
It['s] my obligation to . . . give the jury the law.
Notwithstanding what the lawyers say. . . . it's my
responsibility, not the lawyer's responsibility[,] to give
the law.
[M]y instruction was incomplete. . . . The fact
that it . . . was brought to my attention by virtue of the
numerous questions raised by the jury, I don't think is
-- of great significance.
When the jurors returned from lunch, the judge reinstructed them as
follows:
A-4668-17
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"In order for you [to] find the defendant guilty of
robbery, the State is required to prove each of the
following element[s] beyond a reasonable doubt:
One, that the defendant was in the course of
committing a theft.
Two, that while in the course of committing that
theft, the defendant knowingly inflicted bodily injury
or used force upon another."
In . . . actuality, . . . that's part of (a) . . . of two.
Part (b) is, "Or threatened another with or purposely put
another in fear of immediate bodily injury.["] All right.
So, there's two elements. Just so we're clear.
There are two elements to robbery. One that the
defendant was in the course of committing a theft.
Two, that either while in the course of
committing a theft, the defendant knowingly inflicted
bodily injury or used force upon another. Or,
alternatively, threatened another with, or purposely put
another in fear of bodily injury.
Although no bodily injury need have resulted, the
prosecution must prove that the defendant either
threatened the victim with, or purposely put the victim
in fear of such bodily injury. That's the addition. That's
the incomplete part that I didn't give.
Now, this is part and parcel of the entire twenty-
eight[-]page instruction. You . . . are to treat this
instruction that I gave you . . . and give it the same
consideration that you're gonna give to all the other
instructions that I gave you. All right.
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I am not going to at this point, respond to those
questions that you've given me in light of my additional
instruction dealing with the incomplete version of the
law that I gave to you two days ago.
I'm gonna send you back into the jury room. If
you have a question, in light of what I just told you,
sen[d] it out to me.
The judge gave the charge as to threat-of-force over counsels' strenuous
objections and motions for mistrial. The lawyers declined his offer allowing
them to make an additional closing argument to the jury. At counsel's request,
the judge again told the jury the State had to prove its case beyond a reasonable
doubt.
The judge relied upon the principle found in State v. Parsons, 270 N.J.
Super. 213, 224-25 (App. Div. 1994), that failure to assist the jury in
"understanding issues it must decide" is error. He also told the jury he added
parallel language to a revised verdict sheet, which now included the following:
"that [defendant] did threaten with or purposely put in fear of immediate bodily
injury" upon the three named victims. The day following the supplemental
instruction, the jury returned its verdict.
On appeal, defendant raises the following points:
POINT I. DEFENDANT'S CONVICTIONS MUST BE
REVERSED BECAUSE THE SURVEILLANCE
VIDEO AND PHOTOGRAPH AT THE HEART OF
A-4668-17
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THE STATE'S CASE DEPICTING DEFENDANT IN
THE GENERAL VICINITY OF A CRIME WERE
NOT PROPERLY AUTHENTICATED AND
SHOULD NOT HAVE BEEN ADMITTED INTO
EVIDENCE.
A. Piecemeal authentication of the
surveillance footage was improper and
prejudicial.
B. [Defendant's] alleged photograph was not
properly authenticated, and even if it had been,
the alleged identification did not establish that
[defendant] was present at the time of the crime.
1. The photograph was not
authenticated and should not have been
admitted into evidence.
2. The photograph did not establish that
[defendant] was present at the time of the
crime.
POINT II. DEFENDANT'S CONVICTIONS MUST
BE REVERSED BECAUSE, VIEWING THE
EVIDENCE IN ITS ENTIRETY, A REASONABLE
JURY COULD NOT HAVE FOUND GUILT
BEYOND A REASONABLE DOUBT BECAUSE
THE STATE FAILED TO PROVE EACH ELEMENT
OF THE CRIMES CHARGED.
A. The State failed to prove second[-]degree
robbery and simple assault as to Ms. Paz.
B. The State failed to prove first[-]degree
robbery and aggravated assault as to Mr.
Rodriguez.
A-4668-17
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POINT III. THE PROSECUTOR'S COMMENTS
DURING OPENING AND SUMMATION
MISCHARACTERIZED THE EVIDENCE.
POINT IV. THE TRIAL JUDGE COMMITTED [PER
SE] REVERSIBLE ERROR BY RE-INSTRUCTING
THE JURY ON THE ELEMENTS OF ROBBERY
AFTER THE CHARGE CONFERENCE, CLOSING
ARGUMENTS, TWO DAYS OF JURY
DELIBERATIONS, AND SEVERAL POINTED
JURY QUESTIONS.
A. The court expanded the robbery charge by
modifying the jury instruction after deliberations
began.
1. The indictment.
2. The original jury instruction.
3. Revision of the jury instruction
during jury deliberations.
B. By modifying the jury charge, the trial
judge constructively amended the indictment and
invaded the province of the grand jury.
C. Amendment of the indictment is per se
reversible error.
POINT V. THE SENTENCE IMPOSED WAS
EXCESSIVE, UNDULY PUNITIVE, AND
THEREFORE MUST BE REDUCED.
Defendant raises the following points in a pro se brief:
POINT #1: THE PROSECUTOR IMPROPERLY
QUESTIONED SGT. LEMMERLING ABOUT AN
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IDENTIFICATION MADE BY A NON-TESTIFYING
WITNESS, WHICH VIOLATES DEFENDANT'S
RIGHTS TO CONFRONTATION AND VIOLATES
[THE] VI AMENDMENT [CONCERNING]
CRIMINAL PROSECUTIONS.
POINT #2: THE PROSECUTOR ELICITED
IMPROPER LAY-WITNESS OPINION TESTIMONY
AS TO THE CONTENT OF THE SURVEILLANCE
VIDEO.
POINT #3: [THE JUDGE] FAILED TO GIVE
DISCRETE AND SPECIFIC INSTRUCTIONS ON
IDENTIFICATION.
I.
Defendant's challenge to the authentication of the surveillance video and
photograph was not made at trial. Therefore, on appeal he must establish that
the admission of the exhibits was plain error. R. 2:10-2.
A trial court's evidentiary rulings are reviewed for abuse of discretion.
State v. Maguire, 419 N.J. Super. 88, 135 (App. Div. 2011). We do not disturb
such rulings in the absence of a clear error in judgment. State v. J.A.C., 210
N.J. 281, 295 (2012). We do not substitute our analysis for that of the trial court
unless "the trial court's ruling is so wide of the mark that a manifest denial of
justice resulted." Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
It is well-settled that a videotape "qualifies as a writing" and "must be
properly authenticated" to "be admissible in evidence . . . ." State v. Wilson,
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135 N.J. 4, 17 (1994) (citing N.J.R.E. 901). Under N.J.R.E. 901, "[t]o satisfy
the requirement of authenticating or identifying an item of evidence, the
proponent must present evidence sufficient to support a finding that the item is
what its proponent claims." This rule of evidence "does not require absolute
certainty or conclusive proof." State v. Mays, 321 N.J. Super. 619, 628 (App.
Div. 1999). "The proponent of the evidence is only required to make a [prima
facie] showing of authenticity." Ibid. After such a showing is made, the
evidence is admissible and the jury decides the ultimate question of
authenticity. Ibid.
Authentication of a videotape is similar to the authentication of a
photograph. State v. Loftin, 287 N.J. Super. 76, 98 (App. Div. 1996).
"[T]estimony must establish that the videotape is an accurate reproduction of
that which it purports to represent and the reproduction is of the scene at the
time the incident took place." Ibid. (citing Wilson, 135 N.J. at 15). The
photographer or videographer need not testify "because the ultimate object of an
authentication is to establish its accuracy or correctness." Wilson, 135 N.J. at
14. Thus, "any person with the requisite knowledge of the facts represented in
the photograph or videotape may authenticate it." Ibid.
A-4668-17
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When the tape was shown at trial, the victims identified themselves and
the location in which the incident occurred. They testified, contrary to
defendant's assertion on appeal, that they were captured on film headed towards
the restaurant immediately before the incident, shortly after 2:00 a.m. Clearly,
they had the "requisite knowledge of the facts represented" in the video. Ibid.
Lemmerling in turn established a proper chain of custody by testifying
regarding the steps he took to obtain the film, download it onto a flash drive,
and from there onto a disc he knew would be admitted into evidence.
Lemmerling said that the video was the same as the one he took from the
surveillance camera and that he did nothing to modify or alter it. He similarly
described the techniques he used to make the still photos from the surveillance
tape. See Loftin, 287 N.J. Super. at 98-99. That testimony, which was not
impeached, established that the video tape was in the same condition when
presented to the jury as when originally removed from the surveillance camera.
See State v. Mosner, 407 N.J. Super. 40, 62 (App. Div. 2009).
Gregus testified that during defendant's interview, he showed him the still
photograph of the man wearing a hat walking on the heels of the victim. He
obtained it from Lemmerling's case file, knowing Lemmerling had printed it out
A-4668-17
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from the surveillance camera footage, as Lemmerling also described. Defendant
admitted it was a photograph of himself.
Thus, not only was there no abuse of discretion, as the evidence met the
legal requirements for authentication and admission, a proper chain of custody
was established. No miscarriage of justice resulted from the admission of the
video and the photograph.
II.
Defendant also contends his convictions must be reversed because a
reasonable jury could not have found him guilty of the charges related to
Rodriguez and Paz beyond a reasonable doubt, leading to his conclusion that the
judge should have granted his Reyes motion for judgment of acquittal. See State
v. Reyes, 50 N.J. 454, 458 (1967). We employ the same standard as did the trial
judge when reviewing this decision—we determine whether the evidence
presented at trial was sufficient to warrant a conviction. Ibid.
First-degree robbery occurs "if in the course of committing [a] theft the
actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious
bodily injury, or is armed with, or uses or threatens the immediate use of a
deadly weapon." N.J.S.A. 2C:15-1(b).
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Second-degree robbery occurs when a person, "in the course of
committing a theft," "(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 . . . ." N.J.S.A. 2C:15-1(a)(1), (2). An act is "'in the course of committing
a theft' if it occurs in an attempt to commit theft . . . ." N.J.S.A. 2C:15-1(a).
Aggravated assault occurs when a person:
(1) Attempts to cause serious bodily injury to
another, or causes injury purposely or knowingly or
under circumstances manifesting extreme indifference
to the value of human life recklessly causes such injury;
or
(2) Attempts to cause or purposely or knowingly
causes bodily injury to another with a deadly weapon;
or
(3) Recklessly causes bodily injury to another with a
deadly weapon . . . .
[N.J.S.A. 2C:12-1(b).]
Serious bodily injury is defined as "bodily injury which creates a substantial risk
of death or which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ . . . ." N.J.S.A.
2C:11-1(b).
Simple assault occurs when an actor: "(1) [a]ttempts to cause or
purposely, knowingly or recklessly causes bodily injury to another"; or "(2)
A-4668-17
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[n]egligently causes bodily injury to another with a deadly weapon"; or "(3)
[a]ttempts by physical menace to put another in fear of imminent serious bodily
injury." N.J.S.A. 2C:12-1(a).
The State's theory of the case was that defendant, who identified himself
in the photograph taken from the surveillance video as the individual wearing a
hat walking immediately behind the victims, was the person who accosted the
group and injured Rodriguez. Rodriguez said he was punched by a man wearing
a hat, who demanded money, went through his pockets, and struck him a second
time when he attempted to assist Paz. Paz somehow broke her ankle in the panic
of the moment when Rodriguez was accosted. Rodriguez said on the stand that
he believed the person with the hat was the one that hit him because the other
individual involved in the robbery chased Ramos-Sanchez when she fled.
Thus, a reasonable jury could have found defendant struck Rodriguez
while committing a theft causing him serious bodily injury, including the scar.
The cases upon which defendant relies to challenge the jury's conclusion that
the scar constituted a "serious bodily injury" are distinguishable. In State v.
Green, 318 N.J. Super. 361, 368, 371 (App. Div. 1999), the court noted that a
one-and-one-half-inch scar on the victim's palm did not constitute a serious
bodily injury. In State v. Williams, 197 N.J. Super. 127, 132 (App. Div. 1984),
A-4668-17
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the victim had a "barely perceptible mark" on her wrist. These are significantly
different from Rodriguez's scar, which ran some two to three inches, and was on
his forehead. See State v. Sloane, 111 N.J. 293, 298 (1988) ("The legislative
definition of 'serious bodily injury' requires a jury finding of 'bodily injury
which . . . causes serious, permanent disfigurement . . . .'" (quoting N.J.S.A.
2C:11-1(b))). The jury's findings that defendant was guilty, as to Rodriguez, of
first-degree robbery and the merged offense of second-degree aggravated
assault, were supported by the proofs in the record.
As to Paz, although she could not specify what caused her to fall and break
her ankle, it was reasonable for the jury to have found that she interpreted
defendant's conduct as threatening the use of force upon her. Witnessing the
assailant striking her companion and demanding money would certainly cause
her to fear that she was next. Therefore, a reasonable jury could have found that
defendant "purposely put[] [her] in fear of immediate bodily injury[,]" in order
to accomplish a theft, justifying the second-degree robbery conviction, and the
simple assault charge as well. There is no merit to either challenge.
III.
"Prosecutors 'are afforded considerable leeway in making opening
statements and summations[,]'" State v. Echols, 199 N.J. 344, 359-60 (2009)
A-4668-17
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(quoting State v. Williams, 113 N.J. 393, 447 (1988)), and "are expected to make
vigorous and forceful closing arguments to juries[,]" State v. Frost, 158 N.J. 76,
82 (1999). Nonetheless, a prosecutor's opening statement and "summation [are]
limited to commenting upon the evidence and the reasonable inferences to be
drawn therefrom." State v. Swint, 328 N.J. Super. 236, 261 (App. Div. 2000).
Because defense counsel did not object to the disputed comments at trial,
"the asserted error must be evaluated by the plain-error standard, namely
whether the misconduct was so egregious in the context of the [opening
statement and] summation as a whole as to deprive defendant of a fair trial."
State v. Tilghman, 345 N.J. Super. 571, 575 (App. Div. 2001).
Defendant asserts the State "misled the jury" during opening statements
by claiming that "'all' three victims would uniformly testify" that two assailants
approached them from behind. They did not—the victims did not agree on the
number of attackers, or whether they were approached from behind or the front.
The prosecutor's statement in opening, however, was merely an outline of
what he anticipated would be the witnesses' testimony. See Szczecina v. P.V.
Holding Corp., 414 N.J. Super. 173, 177-78 (App. Div. 2010) ("The fundamental
purpose of opening statements is 'to do no more than inform the jury in a general
way of the nature of the action and the basic factual hypothesis projected, so that
A-4668-17
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they may be better prepared to understand the evidence." (emphasis added)
(quoting Amaru v. Stratton, 209 N.J. Super. 1, 15 (App. Div. 1985))).
Rodriguez and Ramos both initially reported that two assailants
approached them from behind while Paz testified that they were approached
from the front, and she initially reported that three or four assailants attacked
the group. The prosecutor's obviously mistaken factual argument was neither
misconduct nor prejudicial. The discrepancy was inconsequential.
Defendant also challenges for the first time the State's argument in
summation that it was defendant who rummaged through Rodriguez's pockets.
The State based its argument on the fact the surveillance video showed the man
in the cap reaching for an object in his pocket as he walked. Defendant now
claims this argument was prejudicial. It was not because these were fair
inferences from the video. See State v. Williams, ___ N.J. ___, ___ (2021) (slip
op. at 17) (quoting State v. Feaster, 156 N.J. 1, 58-59 (1998)). Additionally, the
judge twice instructed the jury that the arguments of counsel are not evidence.
The "reasonable inference[]" was not prejudicial. See ibid.
IV.
Defendant further argues that the jury charge was itself erroneous.
Alleged errors in jury charges are considered "in light of 'the totality of the entire
A-4668-17
21
charge, not in isolation.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting
State v. Chapland, 187 N.J. 275, 289 (2006)). "[B]ecause clear and correct jury
instructions are fundamental to a fair trial, erroneous instructions in a criminal
case are 'poor candidates for rehabilitation under the plain error theory.'" State
v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Jordan, 147 N.J. 409, 422
(1997)).
Courts consider the following factors in reviewing an alleged error in a
jury charge:
(1) the nature of the error and its materiality to the jury's
deliberations; (2) the strength of the evidence against
the defendant; (3) whether the potential for prejudice
was exacerbated or diminished by the arguments of
counsel; (4) whether any questions from the jury
revealed a need for clarification; and (5) the
significance to be given to the absence of an objection
to the charge at trial.
[State v. Docaj, 407 N.J. Super. 352, 365-66 (App. Div.
2009) (citations omitted).]
Here, the indictment charged defendant with the first-degree robbery
(counts one, two, and three) of each victim. The court, after conferring with
counsel, initially omitted the "threatens another with or purposely puts him in
fear of immediate bodily injury" language from the jury charge and the verdict
A-4668-17
22
sheet. Given the facts the State presented at trial, it is not surprising that the
jury initially had questions during deliberations.
Although defense counsel strenuously argued against the judge's decision
to charge threat of force, it is ultimately a judge's responsibility to convey the
law correctly. As the judge observed, fulfilling that responsibility required that
he supplement the charge because the facts developed in the trial came within
the greater scope of the robbery statute. Thus, the court's recharge on the jury
was proper, as was the corresponding correction to the verdict sheet.
The judge's decision to charge did not invade the grand jury process. As
we said in Parsons, it is not enough to merely recite the elements of the offense.
270 N.J. Super. at 224. "If a question discloses that the jury needs specific help
understanding issues it must decide, particularly issues related to the elements
of the crime charged, and that help is not given," failure to do so is error. Id. at
224-25.
If we assume for the sake of argument only that the judge's decision to
charge the jury regarding the threat of force was effectively an amendment to
the indictment, such amendments are permitted under Rule 3:7-4 so long as
defendant had adequate notice of the allegations and would not be prejudiced
thereby. See State v. Dorn, 233 N.J. 81, 96 (2018).
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The victims' descriptions of the robbery and their injuries certainly put
defendant on notice, separate from the language of the indictment, both pre- and
post-trial. The changes the judge made did not charge a different offense. See
R. 3:7-4. Defendant had sufficient notice and was not prejudiced.
Furthermore, the judge's response to the jury's questions was reasonable.
During the first day of deliberations, the jury requested several readbacks. The
following day, a juror was excused for personal reasons requiring the court to
instruct the jury to begin anew. It was only during that second day of
deliberations with the newly constituted panel that the jury began to ask
questions as to whether the word "force" requires physical contact.
In discussing the issue with the attorneys, the judge acknowledged that
the threat of force is a statutory element and that with both parties' assent he did
not charge it because of defense counsels' observation that the language was not
in the indictment. The jury then posed more questions regarding the meaning
of the word "force."
Specifically, the jury asked the following: "[i]f someone is injured during
the course of a crime, is the defendant responsible?" The court and counsel
conferred regarding possible meanings while the jury was excused for lunch.
When they returned, the jury asked this additional question: "[i]s the threat of
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force the same as the use of force to classify a theft as a robbery?" It was at that
juncture that the judge realized his failure to instruct the jury on the threat of
force had left them with an analytical void that was impeding deliberations.
Based on the questions, he made the decision that regardless of counsels'
position, he had to fulfill his responsibility to charge the jury correctly to ensure
deliberations were just. See Parsons, 270 N.J. Super. at 224-25.
Defense counsel further objected to the recharge on the basis that their
summations did not address the threat of force. But when asked if they wanted
the opportunity to again sum up to the jury, the attorneys declined. Defense
counsel did request a recharge to the jury that a conviction could only be based
on the State proving every element of the offenses beyond a reasonable doubt.
The judge did so.
The judge's decision to fully charge the jury to mirror the robbery statute
elements that were relevant to the proofs developed at trial fulfilled the court's
"primary obligation" to charge correctly, even over a defense objection. See
State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160 (2004).
No prejudice inured to defendant from the recharge. A judge is expected to
correct perceived errors including "erroneous, misleading, or confusing
instruction[s] . . . ." State v. McKinney, 223 N.J. 475, 497 (2015).
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In any event, defendant's defense at trial was reasonable doubt. It was
based upon inconsistencies in the victims' statements, intended to attack the
certainty that the two men filmed following closely on the heels of the victims
moments before they were assaulted, dressed in the same garb as described by
one of the victims, were guilty of robbery. Counsel argued that defendant was
not guilty based on identity. Nothing about that defense would have changed
even if the judge had charged threat of force initially. Since no prejudice inured
to defendant from the charge, the judge did not err by fulfilling his primary
obligation to correctly charge the jury.
V.
Defendant finally asserts in his counseled brief that his sentence was
manifestly excessive. We do not agree.
"[Our] review of sentencing decisions is relatively narrow and is governed
by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297
(2010). We consider whether the trial court has made findings of fact grounded
in "reasonably credible evidence"; whether the factfinder applied "correct legal
principles in exercising . . . discretion"; and whether "application of the facts to
the law [has resulted in] such a clear error of judgment that it shocks the judicial
conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
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We review a trial judge's findings as to aggravating and mitigating factors
to determine whether the factors are based on competent, credible evidence in
the record. Id. at 363. "To facilitate meaningful appellate review, trial judges
must explain how they arrived at a particular sentence." State v. Case, 220 N.J.
49, 65 (2014) (citing State v. Fuentes, 217 N.J. 57, 74 (2014); R. 3:21-4(g)
(requiring the judge to state reasons for imposing the sentence, including the
factual basis for finding aggravating or mitigating factors affecting the
sentence)).
The judge's discussion of defendant's significant criminal record justified
the weight he accorded aggravating factors three, six, and nine. Nothing in the
record supports the mitigating factors defendant now proposes should have be en
found by the judge: one, that his "conduct neither caused nor threatened serious
harm[,]" two, that he "did not contemplate [his] conduct would cause or threaten
serious harm[,]" and eleven, that imprisonment "would entail excessive hardship
to [himself] or [his] dependents . . . ." N.J.S.A. 2C:44-1(1), (2), (11). Given
defendant's extensive criminal history and the lack of any mitigating evidence,
the judge did not abuse his discretion in sentencing defendant. It was not a clear
error of judgment which shocks our conscience. See Roth, 95 N.J. at 364.
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VI.
Defendant also filed a pro se brief. We consider the issues raised that are
not addressed in this opinion to be so lacking in merit as to not warrant
discussion in a written decision. R. 2:11-3(e)(2).
Affirmed.
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