NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2501-15T2 STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHNSLER ERTILIEN,
Defendant-Appellant.
__________________________
Submitted June 6, 2017 – Decided June 27, 2017
Before Judges Reisner and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-08-1962.
Michael I. Okechuku, attorney for appellant.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Kayla Elizabeth Rowe, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Johnsler Ertilien appeals from his conviction for
second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and
N.J.S.A. 2C:5-2, first-degree employing a juvenile in the commission of a crime, N.J.S.A. 2C:24-9, and the disorderly persons
offense of knowingly receiving stolen property, N.J.S.A. 2C:20-
7(a). He was sentenced to six years in prison subject to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for conspiracy to
commit robbery, a concurrent term of eleven years in prison for
employing a juvenile, and a concurrent term of two months for the
disorderly persons offense.1
On this appeal, defendant raises the following arguments:
POINT I. THE COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE; ALTERNATIVELY, THE COURT SHOULD HAVE FOUND DEFENDANT NOT GUILTY AT THE END OF THE ENTIRE CASE AS THE STATE FAILED TO PROVE THAT DEFENDANT COMMITTED THE ACTS OF CONSPIRACY TO COMMIT ROBBERY, EMPLOYING A JUVENILE TO COMMIT ROBBERY AND RECEIVING STOLEN PROPERTY (Raised below)
A. DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE, AS THE EVIDENCE TO SUPPORT A CONVICTION WAS SO SCANTY AND UNRELIABLE AS TO VIOLATE DEFENDANT’S DUE PROCESS.
B. THE STATE WAS REQUIRED TO ESTABLISH EVIDENCE DEMONSTRATING ALL THE ELEMENTS OF CONSPIRACY TO COMMIT ROBBERY IN ORDER TO SURVIVE
1 The concurrent two month sentence, imposed on the record at the sentencing hearing, was not memorialized in the JOC, perhaps because defendant had already served more than two months in jail pre-trial.
2 A-2501-15T2 DEFENDANT’S MOTION FOR ACQUITTAL ON THAT COUNT.
C. THE STATE WAS REQUIRED TO ESTABLISH EVIDENCE DEMONSTRATING ALL THE ELEMENTS OF EMPLOYING A JUVENILE TO COMMIT ROBBERY IN ORDER TO SURVIVE DEFENDANT’S MOTION FOR ACQUITTAL ON THAT COUNT.
D. THE STATE WAS REQUIRED TO ESTABLISH BEYOND A REASONABLE DOUBT EVIDENCE DEMONSTRATING ALL THE ELEMENTS OF RECEIVING STOLEN PROPERTY IN ORDER TO SURVIVE DEFENDANT’S MOTION FOR ACQUITTAL ON THAT COUNT.
E. UPON DETERMINING THAT THE EVIDENCE WAS INSUFFICIENT TO WARRANT A CONVICTION, DEFENDANT SHOULD BE ACQUITTED OF ALL CHARGES.
POINT II. DEFENDANT’S REJECTION OF A PLEA OFFER OF A “GUILTY PLEA WITH A MAXIMUM TERM OF THREE YEARS WITH 85 PERCENT PAROLE INELIGIBILITY” IS INADEQUATE TO INFORM DEFENDANT OF THE CHARGES OFFERED AND CONSTITUTES AN ABDICATION OF THE COURT’S ULTIMATE SENTENCING AUTHORITY UNDER N.J.S.A. 2C:43-6 and 2C:44-1 (Partially Raised below)
A. A PLEA OFFER OF A SECOND DEGREE CHARGE THAT WAS COUCHED AS AN OFFER OF A THIRD DEGREE CHARGE IS CONFUSING AND INADEQUATE TO APPRISE THE DEFENDANT OF THE PLEA OFFER THAT WAS MADE.
B. THE PLEA OFFER IS [A] SUBTERFUGE FOR THE IMPOSITION OF [A] PAROLE INELIGIBILITY PERIOD FOR A CHARGE THAT IS NEITHER A FIRST DEGREE OFFENSE NOR A SECOND DEGREE OFFENSE,
3 A-2501-15T2 IN VIOLATION OF N.J.S.A. 2C:43- 7.2(a).
C. THE TRIAL COURT’S WHOLESALE ADOPTION OF THE PROSECUTOR’S PLEA OFFER THAT IMPOSES A MANDATORY MINIMUM TERM CONSTITUTES AN ABDICATION OF THE COURT’S INHERENT DISCRETIONARY SENTENCING POWERS AND AMOUNTS TO AN ABUSE OF JUDICIAL DISCRETION.
D. THE PLEA OFFER RENDERED INEFFECTIVE ANY ADVICE TO THE DEFENDANT OF THE IMMIGRATION CONSEQUENCES OF SUCH A PLEA, WHERE DEFENDANT WAS ENTITLED TO A PRESUMPTION AGAINST INCARCERATION AS A FIRST TIME OFFENDER UNDER N.J.S.A. 2C:44-1, AS TO MAKE ITS REJECTION INVOLUNTARY.
POINT III. THE TRIAL COURT ERRED IN FINDING [THE] SECOND DEGREE CONSPIRACY VERDICT AS A BASIS FOR GRADING COUNT 3, EMPLOYING A JUVENILE IN COMMISSION OF A CRIME, AS A FIRST- DEGREE OFFENSE, PURSUANT TO N.J.S.A. 2C:24-9(d), AND IN IMPOSING THE NERA PAROLE DISQUALIFIER, PURSUANT TO N.J.S.A. 2C:43-7 (Partially Raised below).
A. THE COURT'S DETERMINATION THAT THE SECOND DEGREE CONSPIRACY VERDICT WAS AN UNDERLYING OFFENSE FOR GRADATION TO A FIRST DEGREE OFFENSE UNDER N.J.S.A. 2C:24-9(b) WAS ARBITRARY AND NOT SUPPORTED BY THE RECORD.
B. WHERE THE SECOND DEGREE CONSPIRACY VERDICT DID NOT SPECIFY WHETHER DEFENDANT INFLICTED SERIOUS BODILY INJURY, THE TRIAL COURT ERRED BY IMPOSING THE NERA PAROLE
4 A-2501-15T2 DISQUALIFIER, PURSUANT TO N.J.S.A. 2C:43-7.2(c).
C. DEFENDANT’S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
POINT IV. UNDER THE FACTS OF THIS CASE, THE "SHOW-UP" PROCEDURE BY WHICH THE VICTIM IDENTIFIED THE DEFENDANT AS ONE OF HIS ATTACKERS IN THIS CASE WAS IMPERMISSIBLY SUGGESTIVE, AS TO VIOLATE DEFENDANT’S CONSTITUTIONAL RIGHTS TO CONFRONTATION AND DUE PROCESS. (Not raised Below).
Because the State failed to introduce evidence of the alleged
"juvenile" accomplice's age, we reverse defendant's conviction for
employing a juvenile in the commission of a crime, and we vacate
the eleven-year sentence imposed for that conviction. We affirm
the robbery conspiracy conviction and the six-year NERA term
imposed for that conviction, as well as the conviction and sentence
on the disorderly persons offense. We remand this matter to the
trial court for the limited purpose of entering an amended judgment
of conviction (JOC) consistent with this opinion.
I
For purposes of the appellate issues raised, the trial
evidence can be summarized as follows. According to the victim,
two assailants, one short and one tall, attacked him from behind,
and knocked him down. The victim testified that the shorter
5 A-2501-15T2 individual punched and kicked him, and then took his wallet and
cell phone.
The robbers fled the scene but were detained a few blocks
away, after two police officers, patrolling in their vehicle,
spotted them running across a busy street in the middle of traffic.
The officers stopped the two individuals to warn them that their
irresponsible jaywalking had nearly gotten them killed. After
getting out of their patrol car, the officers saw one of them,
later identified as defendant, place an object under the patrol
car. An officer retrieved the object, saw it was a cell phone,
and placed it on the trunk of the car.
Moments later, the victim, who had run after the robbers,
appeared on the scene and spontaneously exclaimed to the police
that the two people standing near their patrol car had just stolen
his cell phone and wallet. The victim told the police that he was
certain those two were the robbers. After asking the victim for
his cell phone number, one of the officers called that number from
his own cell phone, and the cell phone previously placed on the
car trunk began ringing. Defendant, the taller of the two
suspects, was arrested along with the shorter subject. On being
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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-2501-15T2 STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHNSLER ERTILIEN,
Defendant-Appellant.
__________________________
Submitted June 6, 2017 – Decided June 27, 2017
Before Judges Reisner and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-08-1962.
Michael I. Okechuku, attorney for appellant.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Kayla Elizabeth Rowe, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Johnsler Ertilien appeals from his conviction for
second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and
N.J.S.A. 2C:5-2, first-degree employing a juvenile in the commission of a crime, N.J.S.A. 2C:24-9, and the disorderly persons
offense of knowingly receiving stolen property, N.J.S.A. 2C:20-
7(a). He was sentenced to six years in prison subject to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for conspiracy to
commit robbery, a concurrent term of eleven years in prison for
employing a juvenile, and a concurrent term of two months for the
disorderly persons offense.1
On this appeal, defendant raises the following arguments:
POINT I. THE COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE; ALTERNATIVELY, THE COURT SHOULD HAVE FOUND DEFENDANT NOT GUILTY AT THE END OF THE ENTIRE CASE AS THE STATE FAILED TO PROVE THAT DEFENDANT COMMITTED THE ACTS OF CONSPIRACY TO COMMIT ROBBERY, EMPLOYING A JUVENILE TO COMMIT ROBBERY AND RECEIVING STOLEN PROPERTY (Raised below)
A. DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE, AS THE EVIDENCE TO SUPPORT A CONVICTION WAS SO SCANTY AND UNRELIABLE AS TO VIOLATE DEFENDANT’S DUE PROCESS.
B. THE STATE WAS REQUIRED TO ESTABLISH EVIDENCE DEMONSTRATING ALL THE ELEMENTS OF CONSPIRACY TO COMMIT ROBBERY IN ORDER TO SURVIVE
1 The concurrent two month sentence, imposed on the record at the sentencing hearing, was not memorialized in the JOC, perhaps because defendant had already served more than two months in jail pre-trial.
2 A-2501-15T2 DEFENDANT’S MOTION FOR ACQUITTAL ON THAT COUNT.
C. THE STATE WAS REQUIRED TO ESTABLISH EVIDENCE DEMONSTRATING ALL THE ELEMENTS OF EMPLOYING A JUVENILE TO COMMIT ROBBERY IN ORDER TO SURVIVE DEFENDANT’S MOTION FOR ACQUITTAL ON THAT COUNT.
D. THE STATE WAS REQUIRED TO ESTABLISH BEYOND A REASONABLE DOUBT EVIDENCE DEMONSTRATING ALL THE ELEMENTS OF RECEIVING STOLEN PROPERTY IN ORDER TO SURVIVE DEFENDANT’S MOTION FOR ACQUITTAL ON THAT COUNT.
E. UPON DETERMINING THAT THE EVIDENCE WAS INSUFFICIENT TO WARRANT A CONVICTION, DEFENDANT SHOULD BE ACQUITTED OF ALL CHARGES.
POINT II. DEFENDANT’S REJECTION OF A PLEA OFFER OF A “GUILTY PLEA WITH A MAXIMUM TERM OF THREE YEARS WITH 85 PERCENT PAROLE INELIGIBILITY” IS INADEQUATE TO INFORM DEFENDANT OF THE CHARGES OFFERED AND CONSTITUTES AN ABDICATION OF THE COURT’S ULTIMATE SENTENCING AUTHORITY UNDER N.J.S.A. 2C:43-6 and 2C:44-1 (Partially Raised below)
A. A PLEA OFFER OF A SECOND DEGREE CHARGE THAT WAS COUCHED AS AN OFFER OF A THIRD DEGREE CHARGE IS CONFUSING AND INADEQUATE TO APPRISE THE DEFENDANT OF THE PLEA OFFER THAT WAS MADE.
B. THE PLEA OFFER IS [A] SUBTERFUGE FOR THE IMPOSITION OF [A] PAROLE INELIGIBILITY PERIOD FOR A CHARGE THAT IS NEITHER A FIRST DEGREE OFFENSE NOR A SECOND DEGREE OFFENSE,
3 A-2501-15T2 IN VIOLATION OF N.J.S.A. 2C:43- 7.2(a).
C. THE TRIAL COURT’S WHOLESALE ADOPTION OF THE PROSECUTOR’S PLEA OFFER THAT IMPOSES A MANDATORY MINIMUM TERM CONSTITUTES AN ABDICATION OF THE COURT’S INHERENT DISCRETIONARY SENTENCING POWERS AND AMOUNTS TO AN ABUSE OF JUDICIAL DISCRETION.
D. THE PLEA OFFER RENDERED INEFFECTIVE ANY ADVICE TO THE DEFENDANT OF THE IMMIGRATION CONSEQUENCES OF SUCH A PLEA, WHERE DEFENDANT WAS ENTITLED TO A PRESUMPTION AGAINST INCARCERATION AS A FIRST TIME OFFENDER UNDER N.J.S.A. 2C:44-1, AS TO MAKE ITS REJECTION INVOLUNTARY.
POINT III. THE TRIAL COURT ERRED IN FINDING [THE] SECOND DEGREE CONSPIRACY VERDICT AS A BASIS FOR GRADING COUNT 3, EMPLOYING A JUVENILE IN COMMISSION OF A CRIME, AS A FIRST- DEGREE OFFENSE, PURSUANT TO N.J.S.A. 2C:24-9(d), AND IN IMPOSING THE NERA PAROLE DISQUALIFIER, PURSUANT TO N.J.S.A. 2C:43-7 (Partially Raised below).
A. THE COURT'S DETERMINATION THAT THE SECOND DEGREE CONSPIRACY VERDICT WAS AN UNDERLYING OFFENSE FOR GRADATION TO A FIRST DEGREE OFFENSE UNDER N.J.S.A. 2C:24-9(b) WAS ARBITRARY AND NOT SUPPORTED BY THE RECORD.
B. WHERE THE SECOND DEGREE CONSPIRACY VERDICT DID NOT SPECIFY WHETHER DEFENDANT INFLICTED SERIOUS BODILY INJURY, THE TRIAL COURT ERRED BY IMPOSING THE NERA PAROLE
4 A-2501-15T2 DISQUALIFIER, PURSUANT TO N.J.S.A. 2C:43-7.2(c).
C. DEFENDANT’S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
POINT IV. UNDER THE FACTS OF THIS CASE, THE "SHOW-UP" PROCEDURE BY WHICH THE VICTIM IDENTIFIED THE DEFENDANT AS ONE OF HIS ATTACKERS IN THIS CASE WAS IMPERMISSIBLY SUGGESTIVE, AS TO VIOLATE DEFENDANT’S CONSTITUTIONAL RIGHTS TO CONFRONTATION AND DUE PROCESS. (Not raised Below).
Because the State failed to introduce evidence of the alleged
"juvenile" accomplice's age, we reverse defendant's conviction for
employing a juvenile in the commission of a crime, and we vacate
the eleven-year sentence imposed for that conviction. We affirm
the robbery conspiracy conviction and the six-year NERA term
imposed for that conviction, as well as the conviction and sentence
on the disorderly persons offense. We remand this matter to the
trial court for the limited purpose of entering an amended judgment
of conviction (JOC) consistent with this opinion.
I
For purposes of the appellate issues raised, the trial
evidence can be summarized as follows. According to the victim,
two assailants, one short and one tall, attacked him from behind,
and knocked him down. The victim testified that the shorter
5 A-2501-15T2 individual punched and kicked him, and then took his wallet and
cell phone.
The robbers fled the scene but were detained a few blocks
away, after two police officers, patrolling in their vehicle,
spotted them running across a busy street in the middle of traffic.
The officers stopped the two individuals to warn them that their
irresponsible jaywalking had nearly gotten them killed. After
getting out of their patrol car, the officers saw one of them,
later identified as defendant, place an object under the patrol
car. An officer retrieved the object, saw it was a cell phone,
and placed it on the trunk of the car.
Moments later, the victim, who had run after the robbers,
appeared on the scene and spontaneously exclaimed to the police
that the two people standing near their patrol car had just stolen
his cell phone and wallet. The victim told the police that he was
certain those two were the robbers. After asking the victim for
his cell phone number, one of the officers called that number from
his own cell phone, and the cell phone previously placed on the
car trunk began ringing. Defendant, the taller of the two
suspects, was arrested along with the shorter subject. On being
searched, the shorter individual was found to have several cell
phones in his pockets.
6 A-2501-15T2 Based on that evidence, the jury acquitted defendant of
robbery, but convicted him of the other charges previously noted.
II
After reviewing the record, we agree that the State failed
to present evidence to establish that the shorter individual
involved in the robbery was, in fact, a "juvenile." The pertinent
statute provides that "any person who is at least 18 years of age
who knowingly uses, solicits, directs, hires, employs or conspires
with a person who is in fact 17 years of age or younger to commit
a criminal offense is guilty of a crime." N.J.S.A. 2C:24-9
(emphasis added). Thus, the individual's age is an element of the
crime, which the State must prove. See State v. Lassiter, 348
N.J. Super. 152, 160-161 (App. Div. 2002) (where a participant's
age is an element of an offense, the State must prove that
element); State v. Collins, 262 N.J. Super. 230, 235 (App. Div.
1993) ("[W]ithout proof that the person whom the actor engaged in
the criminal offense [of employing a juvenile in distributing
drugs] is seventeen years old or younger, there is no violation
of this statute.").
In this case, the State did not introduce the individual's
birth certificate, or any other legally competent evidence from
which the jury could conclude that he was under the age of
eighteen. As the trial judge and both attorneys acknowledged, a
7 A-2501-15T2 police officer's testimony referring to that individual as "the
juvenile" was insufficient to meet the State's proof burden. In
fact, the prosecutor candidly admitted that the lack of proof was
an oversight, and defense counsel understandably refused the
prosecutor's belated request that he stipulate to the individual's
age. Because there was no evidence to support a material element
of the charge, the conviction on that count was a clear miscarriage
of justice and must be reversed. R. 2:10-1; Lassiter, supra, 348
N.J. Super. at 160-61.
III
To the extent that defendant's arguments concerning his
rejection of a pre-trial plea offer, or concerning the lack of a
Wade2 hearing, raise claims of ineffective assistance of counsel,
we decline to consider such issues without prejudice to his right
to file a petition for post-conviction relief. State v. Preciose,
129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411,
419 (App. Div. 1991).
Defendant's remaining arguments are without sufficient merit
to warrant discussion beyond the following brief comments. R.
2:11-3(e)(2).
2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
8 A-2501-15T2 Viewing the State's evidence in light of the applicable legal
standard, State v. Reyes, 50 N.J. 454, 459 (1967), the trial court
properly denied defendant's motion for a directed verdict of
acquittal on the charges of conspiracy to commit robbery and
receiving stolen goods. Defendant did not move for a new trial,
but even if we consider his arguments, the verdict as to those two
offenses was not against the weight of the evidence. See R. 2:10-
1.
Contrary to defendant's identification argument, raised for
the first time on appeal, there was no "show-up" identification
procedure in this case. In fact, the police did not initiate any
identification procedures at all, because as soon as the victim
arrived, he immediately and spontaneously pointed out defendant
and his companion as the robbers. Consequently, we find no plain
error. R. 2:10-2. Defendant's remaining identification arguments
go to the weight of the evidence. There was sufficient evidence
of defendant's identity to submit the issue to the jury. Reyes,
supra, 50 N.J. at 459.
Contrary to defendant's sentencing argument, NERA applies to
a conviction for "conspiracy to commit" any of the listed crimes,
including robbery. N.J.S.A. 2C:43-7.2(d), -7.2(d)(9).
In summary, we reverse the conviction for employing a juvenile
to commit a crime and vacate the sentence imposed on that
9 A-2501-15T2 conviction. We affirm the remaining convictions and sentences
imposed. We remand for the limited purpose of entering an amended
JOC consistent with this opinion.
Affirmed in part, reversed in part, and remanded solely to
amend the JOC. We do not retain jurisdiction.
10 A-2501-15T2