SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4902-96T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GREGORY OLIVER,
Defendant-Appellant.
________________________________________
Submitted November 10, 1998 - Decided December 18,
1998
Before Judges Muir, Jr., Keefe and Eichen.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County, whose
opinion is reported at
298 N.J. Super. 538
(Law Div. 1996).
Ivelisse Torres, Public Defender, attorney for
appellant (Robert L. Sloan, Assistant Deputy
Public Defender, of counsel and on the brief).
Ronald S. Fava, Passaic County Prosecutor,
attorney for respondent (Gary H. Schlyen,
Chief Assistant Prosecutor, of counsel and on
the brief).
Appellant filed a pro se supplemental brief.
EICHEN, J.A.D.
A jury found defendant guilty of first degree robbery,
N.J.S.A. 2C:15-1a(1) and/or (2) and N.J.S.A. 2C:2-6 (count two);
second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count
three); and third degree aggravated assault, N.J.S.A. 2C:12-1b(2)
(count four). He was acquitted of attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:2-6 (count one). The court
sentenced defendant to life imprisonment without eligibility for
parole for first degree robbery, pursuant to N.J.S.A. 2C:43-7.1a
(L. 1995, c. 126), entitled the "Persistent Offenders
Accountability Act."See footnote 1 After merging the conviction on count four
into count three, the judge imposed a concurrent ten-year term with
five years of parole ineligibility on count three.
On appeal, defendant makes the following arguments:
POINT I
AN INADEQUATE JURY INSTRUCTION ON ACCOMPLICE
LIABILITY, WHICH FAILED TO EXPLAIN THAT
DEFENDANT HAD TO SHARE THE PURPOSE TO COMMIT
AN ARMED ROBBERY RATHER THAN A 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
IMPROPER SUMMATION COMMENTS, DESIGNED TO
INVOKE SYMPATHY FOR A VIRTUOUS VICTIM,
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 III
THE STATE FAILED TO ESTABLISH THAT DEFENDANT
WAS ELIGIBLE FOR AN EXTENDED TERM OF LIFE
IMPRISONMENT WITHOUT PAROLE.
POINT IV
THE MANDATORY EXTENDED TERM SENTENCE OF LIFE
WITHOUT PAROLE IMPOSED UNDER NEW JERSEY'S
"THREE STRIKES" LAW, N.J.S.A. 2C:43-7.1a,
CONSTITUTED CRUEL AND UNUSUAL PUNISHMENT.
U.S. CONST. AMENDS. VIII, XIV; N.J. CONST.
(1947) ART. I, PAR. 12.
Defendant has submitted a supplemental pro se brief in which
he makes the following additional arguments:
POINT I
THE VIDEOTAPED DEPOSITION WAS EXTREMELY
DEFECTIVE, PREJUDICIAL, UNRELIABLE AND
VIOLATED RIGHT TO CONFRONTATION UNDER N.J.
COURT RULE 3:13-2(B)(C); AND NEW JERSEY RULES
OF EVIDENCE, RULE 804(A)(B).
POINT II
JUDGE FALCONE'S INVOLVEMENT IN STATE WITNESS
CASE WAS BIAS PREJUDICE DUE TO HIS
PARTICIPATION IN CO-DEFENDANT'S VIDEOTAPE
DEPOSITION AGAINST APPELLANT. (Not raised
below).
POINT III
STATE WITNESS EXTRA-JUDICIAL TESTIMONY WHICH
CONSTITUTED IN-COURT IDENTIFICATION WAS
INADMISSIBLE NOTWITHSTANDING PRIOR
INCONSISTENT HEARSAY STATEMENT.
POINT IV
WHETHER TRIAL COURT SHOULD HAVE GAVE JURY
INSTRUCTION ON IDENTIFICATION, WHERE
MISIDENTIFICATION WAS POSSIBLE IN VIOLATION OF
THE DEFENDANT'S DUE PROCESS OF LAW.
We repeat the essential facts of the case as stated by Judge
Riva in his reported decision, State v. Oliver,
298 N.J. Super. 538
(Law Div. 1996):
The evidence revealed that on December
10, 1995, Gregory Oliver and James Fisher
entered an abandoned apartment located in
Building 10 of the Christopher Columbus
Projects in Paterson. While Fisher was
engaged in a conversation with Leon Johnson,
Oliver struck Johnson in the back of the head
with a four foot metal pipe and took from him
$100 and crack cocaine, which he later shared
with Fisher.
As a result of Oliver's actions, Johnson
received a blood clot to his brain and several
fractures to his skull. He also suffered from
swelling and abrasions to the back of his head
and bleeding to his left ear. His scalp was
swollen and bruised. He was in a coma for
about four days and sustained permanent brain
damage.
[Id. at 545-546.]
We have carefully considered each of defendant's arguments in
the context of the entire record and in light of the briefs and
applicable legal principles and conclude they are without merit and
do not require discussion in a written opinion. R. 2:11-3(e)(2).
However, we deem it appropriate to comment briefly on the arguments
in Points I and III of the Public Defender's brief.
As for Point I, we reject defendant's argument that the
judge's accomplice liability instructions were inadequate requiring
reversal of the convictions. Because trial counsel did not object
to the court's instructions we have reviewed this contention under
the plain error standard. See R. 1:7-2. Plain error is reversible
only if it is "clearly capable of producing an unjust result." R.
2:10-2. Accordingly, we will reverse only if "the error led the
jury to a result it otherwise might not have reached." State v.
Macon,
57 N.J. 325, 336 (1971).
When the State proceeds under a theory of accomplice
liability, the jury must be instructed that defendant "shared in
the intent which is the crime's basic element, and at least
indirectly participated in the commission of the criminal act."
State v. Bielkiewicz,
267 N.J. Super. 520, 528 (App. Div. 1993)
(quoting State v. Fair,
45 N.J. 77, 95 (1965)). The judge must
also instruct the jury that it could find the accomplice guilty of
a lesser offense than the principal. Id. at 533. Here, Judge Riva
did not give that specific instruction to the jury.
As a threshold matter, it is questionable whether an
accomplice liability charge should have been given at all in this
case because neither the State nor defendant presented that
scenario. See State v. Rue,
296 N.J. Super. 108, 115 (App. Div.
1996). The State contended that defendant was the principal actor,
while defendant maintained that he was not even present in the room
where the robbery and assault occurred. Indeed, defendant
maintained that the co-defendant Fisher was the principal actor and
that someone else was with Fisher when the victim was brutally hit
over the head and his property taken.
Even if the judge should have instructed the jury that it
could convict defendant of the lesser included offense of second
degree robbery as Fisher's 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 where a jury could not reasonably conclude that
defendant was an accomplice. Here, there was no evidence presented
that the principal may have acted with a different purpose than the
accomplice. Hence, even if the judge should have more fully
instructed the jury on accomplice liability, the error was
harmless. R. 2:10-2.
As for Point III, we conclude that defendant's arguments
concerning defendant's eligibility for imposition of a life
sentence without parole under N.J.S.A. 2C:43-7.1a are without
merit. Accordingly, we affirm substantially for the reasons given
by Judge Riva in his reported decision. We disagree, however, with
one of the judge's findings with respect to the 1973 and 1979
convictions.
N.J.S.A. 2C:43-7.1a provides, in relevant part, that the
lifetime imprisonment sanction applies only to a person "who has on
two or more prior and separate occasions been convicted of [first
degree robbery under Title 2C] or any similar statute of ... this
state ... for a crime that is substantially equivalent to [first
degree robbery]." The State conceded that the three Title 2C
robbery convictions in 1986, which were entered pursuant to guilty
pleas, would only qualify as a single conviction because the three
convictions were entered on the same day.See footnote 2 Consequently, the judge
turned to defendant's robbery convictions in 1973 and 1979 entered
pursuant to N.J.S.A. 2A:141-1 to determine whether he would qualify
for a sentence of life imprisonment without parole.
The judge concluded that defendant's prior robbery convictions
in 1973 and 1979 were "substantially equivalent" to a conviction of
first degree robbery under N.J.S.A. 2C:15-1b. See State v. Oliver,
supra 298 N.J. Super. at 565. The judge reasoned that because
defendant was exposed to a sentence on each of these convictions
within the same ten to twenty year range imposed for first degree
robbery under Title 2C, the convictions qualified as "prior
convictions" under N.J.S.A. 2C:43-7.1a. See id. at 565 and n.11.
We disagree with that determination because we conclude that the
phrase a "substantially equivalent" conviction means a conviction
with more than just the same range of sentence exposure. The judge
recognized this himself when he discussed the qualitative
similarity in criminal conduct between the 1979 and instant
offenses. See id. at 565-566. Indeed, after reviewing the pre-sentence report, the victim's grand jury testimony and police
reports in the 1979 robbery, the judge correctly concluded that the
criminal conduct underlying that conviction was qualitatively
similar to defendant's conduct in the instant case and, therefore,
the 1979 conviction was "substantially equivalent" to a conviction
under N.J.S.A. 2C:15-1b. The judge understood that in order to
qualify as a "prior conviction," the pre-code offense must be
supported by evidence of a forcible taking that produced serious
bodily injury, or an attempt to cause such injury, while the
defendant was armed with a deadly weapon. Hence, he properly
concluded there was sufficient evidence in the record to support a
conviction of first degree robbery for both the 1979 and the
instant conviction. In both cases, defendant forcibly removed the
victim's property after striking the victim in the head from behind
with a hard object causing serious bodily injury to the victim.
There was an absence of similar proofs respecting the 1973
robbery. There, although the sentence exposure conformed to that
for a first degree robbery offense, the State did not present any
evidence of the nature, extent, and consequence of defendant's
criminal conduct during the 1973 robbery similar to that presented
in connection with the 1979 conviction. As earlier noted, evidence
that defendant's sentence on the 1973 fell within the ten to twenty
year range alone was not sufficient. Nonetheless, the two prior
convictions in 1979 and 1986 found by the judge were sufficient to
make defendant eligible for a sentence of life imprisonment without
parole and, accordingly, we agree that defendant was properly
sentenced under the provisions of N.J.S.A. 2C:43-7.1.
We also affirm the convictions substantially for the reasons
expressed by Judge Riva in his decision below upholding the
constitutionality of the Persistent Offenders Accountability Act.
State v. Oliver, supra, 298 N.J. Super. at 546-563; see also State
v. Van Valen,
316 N.J. Super. 20, 21-22 (App. Div. 1998).
Affirmed.
Footnote: 1 N.J.S.A. 2C:43-7.1a is popularly known as the "Three Strikes and You're In" law. Footnote: 2 Defendant entered guilty pleas to offenses charged in three separate indictments on October 10, 1985, December 6, 1985, and December 11, 1985. He was sentenced pursuant to the terms of the plea agreements on January 6, 1986. We do not pass upon whether multiple pleas, as here, entered on different dates resulting in a simultaneous sentencing and entry of a single judgment of conviction may constitute convictions for offenses occurring on two or more prior and separate occasions under N.J.S.A. 2C:43-7.1a. See 2C:43-7.1d which states that "[p]rior convictions shall be defined and proven in accordance with 2C:44-4," and 2C:44-4 that defines a prior conviction as "[a]n adjudication which can be proved by any evidence ... that reasonably satisfies the court that the defendant was convicted" (emphasis added).