Opinion
DOCKET NO. A-5759-10T3
06-21-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KARIM A. DORSEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Mantineo.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-10-1705 and 07-10-1755.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a joint jury trial, defendant Karim A. Dorsey was convicted of first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; second-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). His co-defendant, Preston McCloud, was acquitted of all charges. The jury was reconstituted and, following a second trial, defendant was convicted of the single count in a second indictment charging him with second-degree possession of a firearm by certain persons, N.J.S.A. 2C:39-7(b).
The jury returned a not guilty verdict on count six of the indictment charging defendant with fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4).
A third person, Corderrol Priester, was also charged in the indictment with the same offenses. As we note later in this opinion, Priester pled guilty to the indictment before trial and testified as a defense witness.
After denying defendant's motion for a new trial, the judge sentenced defendant to a twelve-year term of imprisonment, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also imposed concurrent sentences on the remaining counts of that indictment, and he imposed a concurrent five-year sentence on the certain persons conviction.
Defendant raises the following points on appeal:
POINT IWe have considered these arguments in light of the record and applicable legal standards. We affirm defendant's convictions. As we explain in further detail below, we remand the matter to the trial judge for entry of corrected judgments of conviction on both indictments consistent with this opinion.
THE CONVICTION FOR FIRST[-]DEGREE ROBBERY SHOULD BE VACATED BECAUSE THE JURORS WERE NOT INSTRUCTED THAT THEY MUST UNANIMOUSLY
AGREE ON WHO THE VICTIMS WERE. [(Not Raised Below)]
POINT II
UNDER THE INSTANT FACTS, THE DEFENDANT'S CONVICTION FOR KIDNAPPING MUST BE VACATED BECAUSE THE CONFINEMENT WAS NOT FOR A SUBSTANTIAL PERIOD OF TIME AND WAS INCIDENTAL TO THE UNDERLYING CRIME. (Partially Raised Below)
POINT III
THE JURY INSTRUCTION ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WAS FLAWED BECAUSE IT DID NOT SPECIFY THE UNLAWFUL PURPOSE. (Not Raised Below)
POINT IV
THE DEFENDANT WAS DENIED HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL WHEN THE COURT RECONSTITUTED THE JURY FOR THE SEQUENTIAL TRIAL OF CERTAIN PERSONS NOT TO HAVE A FIREARM OFFENSE AND THEN INSTRUCTED THE JURY TO REFER TO THE EVIDENCE SUBMITTED IN THE PREVIOUS TRIAL. (Partially Raised Below)
POINT V
THE JUDGMENTS OF CONVICTION ARE REPLETE WITH ERRORS AND REQUIRE CORRECTION.
I.
The jury heard testimony that on August 10, 2006, three or four men invaded the near-empty apartment of the Locorriere family located on Market Street in Middlesex. The family was in the process of moving and most of the furniture and personal belongings were already out of their first-floor apartment.
On the evening of August 9, seventeen-year old L.L. (Lori) had invited about thirty people to a party in the family's backyard. Among those who remained after most people left were Lori's friends, D.A. (Donna), B.N. (Bobby), M.F. (Mike) and Meredith Lombard. Lori's brother, Steven Locorriere, who was going to take his sister and her friends home, entered the apartment and proceeded to the restroom.
We have fictionalized the first names of those who were minors at the time of the events.
All six of these individuals testified before the jury but none could identify the intruders. Each described the events in a generally consistent manner, although there were differences in their testimony.
Lori testified that, at about 3:30 a.m., Steven arrived and went to use the bathroom. She saw shadows outside the front door, and as she walked in that direction, four armed men rushed inside. One held a gun to her face, told her to close her eyes, forced her down onto the floor and took her purse, which contained an Ipod and her camera. Lori described this person as a lighter-skinned black man who was about a head taller than she. Two other men waited outside the bathroom door for her brother, and a fourth man bound her friends with duct tape. Lori's hands were taped together, and she was placed face down on the floor next to her friends.
Steven emerged from the bathroom and was taken into a bedroom by the intruders, interrogated about the location of jewelry in the house and asked why the basement door was locked. Lori heard a police officer identify himself at the backdoor, and one of the gunman said he would kill the officer if anyone moved or made a sound. A few minutes later, Lori and the others realized the intruders had left, and they called the police. Lori believed the entire incident lasted about thirty minutes.
Donna recalled three men barging into the house dressed in black with masks and guns. One man held a gun to Donna's face, kicked her and taped her hands and mouth. Donna believed all the men wore long-sleeved black shirts and two of them wore ski masks. Nothing was taken from Donna.
Meredith Lombard recalled seeing four men wearing ski masks rush in through the front door. She saw two of the men had guns and began to cry. Lombard's mouth was taped, and she was told to lie face down on the floor and warned to be quiet.
Mike testified that there were four men, although Bobby thought there were three. Both testified that all the men wore dark, baggy clothing and ski masks. Mike testified that a tall, heavy set man wearing a hoodie put a gun in his mouth and stated that if anyone moved or spoke, Mike would be shot. Mike described the gun as a silver or chrome revolver. The intruders did not take any items from Mike. Bobby saw only one man that was armed and did not recall anyone wearing gloves. Bobby's hands were taped behind his back, and he was told to move against the wall. The men went through Bobby's pockets, removed the battery from his cell phone and took his car keys.
Steven testified that he arrived at the apartment earlier, at about 1:00 a.m., and went to the bathroom. He rushed out of the bathroom when he heard muffled screaming and saw four tall African-American men, armed and wearing dark clothing and masks. The intruders backed Steven into a bedroom and told him to lie down on the floor. One put a gun to the back of his head and threatened to shoot him if he moved. Steven was searched, and some money, a watch, necklace and his car keys were taken. At one point, Steven heard the upstairs neighbor run down the back stairs, and, shortly thereafter, Steven heard a police officer asking if everyone was alright. Once he realized the intruders had left, Steven ran into the living room and freed everyone.
Lacey Martino, who lived in the second-floor apartment, woke up around 3:00 a.m. when she heard shuffling noise downstairs. When she heard the sounds of girls crying, Martino called a friend, Victoria Marsh, whose husband was a police officer in town, and Marsh called the police.
Middlesex Borough patrolman Mark Melchiorre was dispatched to the house at 3:15 a.m. As Melchiorre and another officer, Thomas Falk, approached the house, they noticed someone peering through the blinds from a first floor window. The officers approached a side door and were met by Martino, who escorted them to her upstairs apartment and described what she had heard.
The officers then escorted Martino downstairs and to her car. They again returned to the side door and knocked on an inside door leading to the first-floor apartment. They received no response and heard no sounds. Martino had pointed out a crushed cell phone in the stairwell hallway, and Melchiorre testified that the door to the first-floor apartment was slightly ajar. He was able to "peer[] in" and saw three females lying face down on the floor. Melchiorre eventually identified a fourth person, a male, also lying next to the three women.
Melchiorre asked if they were okay, but received no response. He observed that all four were "bound with duct tape." Melchiorre and Falk retreated from the residence and called for backup assistance. Other units arrived and surrounded the house. Eventually, Steven walk out the front door of the residence. Melchiorre testified that other officers entered the house and "all the victims were removed . . . ." The following night, Melchiorre was summoned to another address near the scene where residents had found a black ski-mask-type piece of apparel.
Later in the morning of August 10, Gary Arrington, who lived two blocks from the scene, found a pile of clothes under a bush across the street from his home. Gary Scott Levensen lived about three blocks from the scene, and, also on August 10, he found purple latex surgical gloves near the garden next to his house. Although he initially threw the gloves in the trash, he later called Detective Dan O'Connor and gave him the gloves.
O'Connor had been assigned to process the scene for evidence. He lifted six latent fingerprints from the Locorriere apartment. O'Connor also took custody of the items found by Arrington, which included three black shirts, three purple latex gloves, a SIM card from a cell phone, a Chrysler car key, a .380 caliber handgun loaded with eleven rounds of ammunition and a black head cloth. At trial, O'Connor identified a short-sleeved tee-shirt as one of the shirts, although he earlier testified, and his report indicated, all three shirts were long-sleeved.
O'Connor testified that one of the prints was "a hit." However, the testimony never associated that print with defendant or anyone else.
Also on August 10, Detective Keith Orts took statements from each victim. He was aware that information about the crime had been forwarded to law enforcement authorities in Somerset, Middlesex and Union counties. Orts was notified that Lori's camera had been recovered by the Plainfield police department. Orts secured buccal swabs from defendant, McCloud and Priester in May of 2007.
Orts testified that he secured a court order for the purpose of obtaining buccal swabs from defendant, McCloud and Priester. McCloud's attorney objected to further testimony regarding the court order, and the judge offered to give a limiting instruction, which McCloud's counsel declined. Orts testified that he obtained a buccal swab from McCloud at the Rainbow Hair Institute on Watchung Avenue in North Plainfield, where McCloud was a student at the time. The record is silent as to where defendant and Priester were when Orts secured buccal swabs from them, and it also silent as to the information supplied to the court to obtain the order.
Christopher Szymkowiak, a forensic scientist employed by the New Jersey State Police, was qualified as an expert in DNA analysis. He identified defendant as the source of DNA on the tee-shirt found near the scene of the crime. Explaining in greater detail the results of his testing, Szymkowiak opined that "in a population of 778 billion African-American individuals, only one person . . . would match that profile . . . ." Szymkowiak could not exclude McCloud as a possible contributor to the "mixed" DNA profile on another shirt that was found near the scene of the crime. Co-defendant Priester's DNA was found on one of the shirts and one of the head cloths recovered.
After the State rested, Priester was called as a defense witness. He testified that he had been convicted of a home invasion robbery in Union County and was currently serving a forty-year sentence. He pled guilty to every count in the subject indictment without any specific sentence recommendation by the State.
Priester testified that defendant and McCloud were not present during the incident at the Locorriere home, and he committed the crimes with Keron Carter and "accomplices." Carter was now dead. Priester explained that he and Steven Locorriere were selling marijuana for Carter at the time of the incident. Carter believed that Steven had sold the marijuana and used the proceeds to buy more marijuana from someone else. According to Priester, he, Carter and two others went to Steven's house to retrieve the marijuana or the money. Preister's description of the robbery was consistent with much of the testimony offered by the State. Priester claimed that, when the police arrived, he, Carter and the others escaped through the side door, discarding their shirts a few houses away. Although they were all armed, only Priester discarded his gun.
McCloud's mother, Glenis McCloud, testified that her son lived with her in Plainfield during the summer of 2006. She testified that their home was burglarized at that time and items of clothing were taken from Preston's room in the basement. Glenis McCloud, however, could not identify any of the clothing produced at trial as being definitively owned by her son.
II.
In Point I, defendant argues that the judge's failure to provide the jury with the "multiple victims" portion of Model Jury Charge (Criminal), "Robbery in the First Degree" (N.J.S.A. 2C:15-1) (revised 9/10/12), was plain error because it permitted the jury to return a non-unanimous verdict, in violation of the holding in State v. Gentry, 183 N.J. 30, 33 (2005). In Point III, defendant contends that the jury charge on possession of a firearm for an unlawful purpose failed to identify the specific unlawful purpose alleged by the State.
Because there was no objections to the charges as given, we review the argument utilizing the plain error standard. See R. 2:10-2 (permitting an appellate court "in the interests of justice" to "notice plain error not brought to the attention of the trial . . . court" if "it is of such a nature as to have been clearly capable of producing an unjust result . . . .").
"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.'" State v. Burns, 192 N.J. 312, 341 (2007) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The alleged error must be considered in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citation omitted). Though an erroneous jury charge is a "poor candidate[] for rehabilitation under the plain error theory[,]" Jordan, supra, 147 N.J. at 422 (citation omitted), any alleged error must be assessed in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. 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).
A.
Here, using the terms "and/or" between each person's name or initials, the first count in the indictment charged defendant with robbery of six individuals while armed with or threatening the use of a deadly weapon. The judge completed his instructions by telling the jury that its "verdict as to . . . each crime charged must be unanimous. Each of the twelve members of the deliberating jury must agree as to the verdict." The judge then distributed a verdict sheet. Question one listed the six alleged victims, using the phrase, "and/or," between each name, before asking the jury to enter a single finding as to whether defendant was guilty or not guilty of robbery.
The principle of unanimity is "deeply ingrained in our jurisprudence" and mandates that "'jurors [must] be in substantial agreement as to just what a defendant did' before determining his or her guilt or innocence." State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)). While Article I, paragraph 9 of the New Jersey Constitution and Rule 1:8-9 require a unanimous verdict in criminal cases, "exactly how [the unanimity requirement] plays out in individual cases is more complicated." Frisby, supra, 174 N.J. at 596.
Additionally, "[i]t is well understood that courts should provide 'specific unanimity' instructions -- that is, impose a requirement that the jury unanimously agree on the facts underlying the guilty verdict -- when there is a specific request for those instructions and where there exists a danger of a fragmented verdict." State v. Gandhi, 201 N.J. 161, 192 (2010) (citing State v. Parker, 124 N.J. 628, 637 (1991)). The Court explained that
where there is an allegation on appeal that a specific unanimity charge should have been given, the core question is, in light of the allegations made and the statute charged, whether the instructions as a whole posed a genuine risk that the jury would be confused. The reviewing court should examine two factors: whether the acts alleged are conceptually similar or are contradictory or only marginally related to each other, and whether there is a tangible indication of jury confusion.
[Id. at 193 (internal quotations, citations, and alterations omitted).]
In Gentry, supra, 183 N.J. at 31, the defendant was indicted for one count of second degree robbery of a store manager "and/or" an employee. Id. at 31. The defendant was accused of seizing several boxes of cigars before running out of the store. Ibid. The State alleged that during the theft, the defendant "charged" a female employee, knocking her backwards, then punched and kicked the store manager as he attempted to flee the store. Ibid. The defendant contended that he only "brushed" past the female employee, and accidentally kicked the manager, who had grabbed onto the defendant's pants in an attempt to thwart his escape. Ibid. Thus, the defendant argued that he never intended to use force against or threaten either victim. Ibid.
During deliberations, the jury sent a note explaining that, while they unanimously agreed that "defendant knowingly used force against" either the manager or the employee, they could not agree as to whether the employee or the manager had been the victim of the unlawful force. Id. at 31-32. One group of jurors believed that the unlawful force had been applied only against the manager; the other group of jurors believed force was used only against the employee. Ibid. The trial judge concluded that this reflected a unanimous finding of guilt and so instructed the jury. Id. at 32.
On appeal, the majority of our colleagues affirmed the defendant's conviction. Judge Coburn dissented, concluding that the jurors had not agreed unanimously on which acts were committed against which victim. State v. Gentry, 370 N.J. Super. 413, 426-27 (App. Div. 2004) (Coburn, J., dissenting). The Supreme Court reversed and remanded for a new trial, substantially for the reasons expressed by Judge Coburn. Gentry, supra, 183 N.J. at 33.
As a result, the model jury charge was amended and no includes the following language:
IF MULTIPLE VICTIMS ARE ALLEGED AND THE FACTS WARRANT, CHARGE THE FOLLOWING:
To find the defendant guilty of robbery, you must be unanimous that the defendant used force against (NAME OF VICTIM NUMBER ONE) or (NAME OF VICTIM NUMBER TWO). In other words, if you find that the defendant used force, but do not unanimously agree that he/she used force against (NAME OF THE VICTIM), then the State has failed to prove the existence of force beyond a reasonable doubt.
[Model Jury Charges (Criminal), supra, at 3-4.]
We do not condone the use of "and/or" either in the indictment or on the interrogatory sheet. In particular factual scenarios, the practice invites the possibility of non-unanimous verdicts. However, the essential inquiry is whether considering the proofs at trial, "'the instructions as a whole [posed] a genuine risk that the jury [would be] confused[,]'" Gandhi, supra, 201 N.J. at 193 (quoting Parker, supra, 124 N.J. at 638) (alterations in original), and return a less than unanimous verdict.
Importantly, the State's evidence demonstrated a continuous, unbroken course of criminal conduct against all six victims. The critical defense witness, Priester, while denying defendant's participation, essentially confirmed the facts as alleged by the State's multiple witnesses. As a result, there was no risk that the jury was confused or misled by the judge's instructions that lacked the "multiple victims" charge.
Lastly, we note that defendant was not convicted of six first-degree robberies. Certainly, the evidence was sufficient to support the jury's unanimous verdict as to at least one robbery against one of the six victims. Given the absence of any objection, we are firmly convinced that the omission of the "multiple victims" portion of the Model Charge did not "possess[] a clear capacity to bring about an unjust result." State v. Adams, 194 N.J. 186, 207 (2008) (internal quotation omitted). We affirm defendant's conviction of first-degree robbery.
B.
In State v. Diaz, 144 N.J. 628, 635 (1996), the Court explained the necessary elements of possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a):
(1) the object possessed was a 'firearm' within the meaning of N.J.S.A. 2C:39-1(f); (2) the firearm was possessed by defendant as defined in N.J.S.A. 2C:2-1(c); (3) the"In the majority of cases, the charge of possession of a firearm for an unlawful purpose 'is coupled with a charge of an act accomplished with the gun -- a robbery, an assault, a homicide -- which the court tells the jury is unlawful.'" Id. at 636 (quoting State v. Jenkins, 234 N.J. Super. 311, 315 (App. Div. 1989)).
defendant's purpose in possessing the firearm was to use it against the person or property of another; and (4) the defendant intended to use the firearm in a manner that was unlawful.
[(Citation omitted).]
In this case, the judge followed the Model Jury Charge (Criminal), "Possession of a firearm with a purpose to use it unlawfully against the person or property of another (N.J.S.A. 2C:39-4a)" (Revised 6/16/03). Regarding the fourth element of the offense, he told the jurors,
This element requires that you find that the State has proven beyond a reasonable doubt that the Defendant possessed a firearm with the conscious objective, design or specific intent to use it against the person or property of another in an unlawful manner as charged in the Indictment and not for some other purpose.
In this case, the State contends that the Defendant['s] unlawful purpose in possessing the firearm was to use it unlawfully against the person of another.
"The trial court's obligation is to identify the unlawful purpose(s) that may be suggested by the evidence." State v. Williams, 168 N.J. 323, 341 (2001). In Williams, the Court deemed the following instruction to be plain error:
The mental element of purpose to use a firearm unlawfully requires that you find that the Defendant possessed the firearm with the conscious objective, design, or specific intent to use it against the person or property of another in an unlawful manner, as charged in the Indictment, and not for some other purpose.
In this case, the State contends that the Defendant's unlawful purpose in possessing the firearm was to use it unlawfully against the person of [the victim].
[Id. at 336 (emphasis added).]
However, it was the defendant's assertion of his use of the weapon in self-defense, coupled with the lack of specificity regarding an alleged unlawful purpose, that compelled the Court's reversal. Id. at 337-38. The failure to more specifically define the "unlawful purpose" "had the clear capacity to mislead the jury." Id. at 339.
In Jenkins, supra, 234 N.J. Super. at 315, the defendant was acquitted of aggravated assault, allegedly shooting at his wife. We reversed the defendant's conviction of possession of a firearm for an unlawful purpose, reasoning that the jury had not been instructed on the specific unlawful purpose suggested by the evidence, and the instruction failed to inform the jury that it could not convict based on its own notions of unlawfulness or an un-described purpose. Id. at 316.
Here, however, despite the judge's failure to specifically enumerate the unlawful purposes charged in the indictment, i.e., robbery, kidnapping and burglary, there is no evidence of confusion or speculation by the jury. It convicted defendant of all those underlying offenses and, as noted, the essential defense was not that defendant possessed the firearm for a lawful purpose, but rather that defendant was not involved at all and was not present.
While it would have been preferable for the judge to specifically state the specific unlawful purposes alleged, that failure, under the circumstances of this particular case, did not amount to plain error.
III.
Defendant contends in Point II that it was plain error for the judge to omit the multiple victims charge with respect to the kidnapping count because it led to the possibility of a non-unanimous verdict. He also claims for the first time on appeal that the judge erred in failing to grant his motions for acquittal and a new trial because the evidence was insufficient to prove all the necessary elements of second-degree kidnapping. Specifically, defendant contends that "the confinement of the alleged victims was not a separate crime but in furtherance of the robbery." We reject both contentions.
Similar to the robbery count, the kidnapping charge in the indictment listed all six alleged victims and utilized the phraseology, "and/or," between each name. The judge gave the general unanimity instruction we cited above. For the same reasons already discussed, it was not plain error to omit any charge regarding multiple victims.
"A person is guilty of kidnapping . . . if he unlawfully confines another for a substantial period, with . . . the . . . purpose[] . . . [t]o facilitate commission of any crime or flight thereafter" or "[t]o inflict bodily injury on or to terrorize the victim or another." N.J.S.A. 2C:13-1(b)(1)and (2). N.J.S.A. 2C:13-1(d) defines "unlawful" confinement to include confinement "accomplished by force, threat or deception." Kidnapping is a second degree crime if the actor "releases the victim unharmed and in a safe place prior to apprehension." N.J.S.A. 2C:13-1(c).
The question of what constitutes "confinement" for purposes of N.J.S.A. 2C:13-1(b) was addressed in State v. La France, 117 N.J. 583, 591-94 (1990). There, the alleged unlawful confinement occurred when the defendant broke into the home of the victims, a husband and wife, with the intent to steal, tied up the husband, dragged the wife down a hallway and sexually assaulted her. Id. at 591-92. Reiterating the concern expressed in State v. Masino, 94 N.J. 436 (1983), the Court noted that absent careful constraints on the prosecution of kidnapping offenses, the State might misuse kidnapping as a "'bonus count' in an indictment." La France, supra, 117 N.J. at 591 (quoting Masino, supra, 94 N.J. at 447-48). The Court held that
one is confined for a substantial period if that confinement "is criminally significant in the sense of being more than merely incidental to the underlying crime," and that determination is made with reference not only to the duration of the confinement, but also to the "enhanced risk of harm resulting from the [confinement] and isolation of the victim [or others]. That enhanced risk must not be trivial."
[Id. at 594 (quoting Masino, supra, 94 N.J. at 447) (alterations in original.]
Initially, we note that defense counsel, in making a motion for acquittal, R. 3:18-1, never argued the point now raised before us. Instead, she generally urged that the evidence was insufficient to find defendant guilty of any of the charges. When the motion was renewed after all the testimony, defense counsel argued the proof was insufficient to link defendant to any of the crimes alleged. The issue also was not raised during defendant's motion for a new trial prior to sentencing. We are convinced, nonetheless, that the argument lacks merit.
We conduct our review of the denial of defendant's motion for acquittal de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:
[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967) (citation omitted).]
In State v. Bryant, 217 N.J. Super. 72, 81 (App. Div.), certif. denied, 108 N.J. 202, cert. denied, 484 U.S. 978, 108 S. Ct. 490, 98 L. Ed. 2d 488 (1987), the "elderly victims were bound and gagged for a period sufficient to permit the ransacking of their houses and remained in that condition for 10 minutes in one case and for an unspecified period in another." Citing Masino, we held that while confinement of the victims during the robbery itself, without more, would not constitute a basis for the kidnapping charge, the defendant had extended that confinement to facilitate his escape, thus exposing the victims to additional risk. Id. at 80-81 (citing Masino, supra, 94 N.J. at 446).
Here, the victims were bound with duct tape or otherwise confined under threat of violence. The facts amply demonstrate that confinement was a critical element permitting defendant to escape before the police dragnet encircled the home. These facts support the separate jury verdict of guilty on the kidnapping charge.
IV.
Defendant argues in Point IV that he was denied due process and a fair trial on the certain persons offense because the judge told the jury to refer to the evidence previously submitted. The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-2(e)(2).
In State v. Ragland, 105 N.J. 189, 195 (1986), the Court held that when the second trial on the certain persons offense is conducted before the same jury, the jury must "be instructed in no uncertain terms to consider anew the evidence previously admitted but to disregard completely its prior verdict." The Model Jury Charge (Criminal), "Certain persons not to have any firearms [N.J.S.A. 2C:39-7b(1)]" (Revised 6/13/05), specifically tells the jurors: "You must disregard completely your prior verdict, and consider anew the evidence previously admitted on the possession of a weapon." (Emphasis added).
Without any objection from the prosecutor or defense counsel, the judge mistakenly used Model Jury Charge (Criminal), "Certain persons not to have any weapons [N.J.S.A. 2C:39-7a]" (Revised 6/13/05). The two charges are essentially identical and, in this case, the judge specifically defined the weapon as a "firearm," and thereafter defined "firearm" in accordance with the proper charge.
Here, without any objection, the jury was reconstituted and included the two jurors who were alternates during the first trial. The judge gave a preliminary instruction that told the jury to "disregard completely your prior verdict and consider anew the evidence previously admitted on possession of a weapon." The prosecutor gave a brief opening statement; defense counsel waived her opening statement. The prosecutor rested, and then defendant testified, generally denying any participation in the crimes. Defense counsel and the prosecutor gave brief summations and the judge charged the jury, utilizing the language from the model charge recited above.
The judge also provided the jury anew with instructions on possession, telling the jury that "[a]lthough you may consider evidence previously introduced, the State must prove beyond a reasonable doubt that the Defendant possessed, in this case, a handgun." The jury briefly deliberated and rendered its guilty verdict.
Although it is not apparent from the record, the briefs note that the one alternate juror from the first trial sat as part of the deliberating jury on the second trial because the jury was "reconstitute[d]." One juror was an alternate in both trials.
Under the circumstances, defendant was not denied a fair trial. We affirm.
V.
Defendant alleges, and the State concedes, that the judgments of conviction "require[] several corrections." Pursuant to N.J.S.A. 2C:43-7.2(d), NERA applies only to Counts One, Two and Three. On Count Five, defendant is subject to a three-year mandatory minimum term of parole ineligibility pursuant to N.J.S.A. 2C:43-6(c). In addition, the transcript reveals the judge sentenced defendant to a three-year term of imprisonment on Count Five, not a five-year term as indicated on the judgment of conviction. Also, defendant was acquitted on Count Six at trial; the judgment of conviction indicates Count Six was dismissed. Finally, pursuant to N.J.S.A. 2C:39-7(b)(1), defendant's sentence on the certain persons offense in the second indictment must include a five-year minimum term of parole ineligibility.
Though not raised by either party at sentencing or on appeal, defendant's conviction on Count Four, for second-degree possession of a weapon for an unlawful purpose, should have merged with one of the substantive offenses for which defendant was convicted. See State v. Crawford, 379 N.J. Super. 250, 257 (2005) ("a reviewing court is not free to ignore an illegal sentence") (citations omitted); State v. Romero, 191 N.J. 59, 79-80 (2007) ("Merger must occur '[w]hen the only unlawful purpose in possessing the [weapon] is to use it to commit the substantive offense.'") (quoting State v. Diaz, 144 N.J. 628, 636 (1996)) (alteration in original). The judge shall correct the judgment of conviction to reflect this merger.
Defendant also argues that because he was sentenced on two indictments in the same proceeding, there should be only one Law Enforcement Officers Training and Equipment Fund (LEOTEF) penalty. See N.J.S.A. 2C:43-3 ("[i]n addition to any disposition . . . any person convicted of a crime shall be assessed a penalty of $30"). The imposition of an LEOTEF penalty on each indictment is required. See State v. Owens, 381 N.J. Super. 503, 515 (App. Div. 2005) (noting that the statute "provides for a $30 penalty per disposition") (emphasis added). In this case, although the judge imposed only one penalty when sentencing defendant on both indictments, each judgment of conviction correctly includes an LEOTEF penalty.
We affirm defendant's convictions. We remand the matter to the trial judge for imposition of a mandatory minimum term of imprisonment on the certain persons offense and entry of corrected judgments of conviction. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION