State v. Alexander

183 A.3d 903, 233 N.J. 132
CourtSupreme Court of New Jersey
DecidedApril 30, 2018
DocketA–49 Sept. Term 2016; 078515
StatusPublished
Cited by62 cases

This text of 183 A.3d 903 (State v. Alexander) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Alexander, 183 A.3d 903, 233 N.J. 132 (N.J. 2018).

Opinion

JUSTICE TIMPONE delivered the opinion of the Court.

**135In this appeal, we address whether the trial court erred when it failed to instruct a jury sua sponte on aggravated assault as a lesser-included offense of robbery.

**136The State alleged that defendant Allen Alexander conspired with another to rob Ernesto Espinal at Gateway Center in Newark. According to the State, defendant held the victim around his neck while another man cut the victim's forehead. Defendant and his co-conspirator left without taking any items from the victim.

Newark Police eventually arrested defendant in connection with the incident. A grand jury indictment charged defendant with second-degree conspiracy to commit robbery, first-degree robbery, fourth-degree unlawful possession of a weapon, and third-degree possession of a weapon for an unlawful purpose. A jury ultimately convicted defendant of all charges.

On appeal, the Appellate Division reversed, finding that the trial court erred in failing to charge the jury sua sponte on "serious bodily injury" aggravated assault, N.J.S.A. 2C:12-1(b)(1). We find that the trial court had no obligation to issue a sua *906sponte jury instruction. We therefore reverse the Appellate Division's decision and reinstate defendant's convictions.

I.

A.

We derive the following facts from testimony presented during defendant's trial. The victim, Ernesto Espinal, and defendant provided differing accounts of the incident that occurred on July 4, 2012.

According to Espinal, he was walking alone through Gateway Center to catch a train in Newark Penn Station when defendant and three other individuals confronted him. Defendant ordered that Espinal give him twenty dollars. Espinal ignored the demand and continued walking toward the train station. Suddenly, defendant grabbed Espinal around his neck and commanded another individual to "cut" Espinal. Defendant's associate cut Espinal across his forehead with a knife while defendant continued to hold Espinal's neck. Defendant and the others then left the area without taking any money from Espinal.

**137Espinal further stated that after the incident, he had "a lot of blood" on his face. He eventually received aid from a Dunkin' Donuts employee and a security person. Police escorted him in an ambulance to University Hospital for treatment. At the hospital, he received stitches, which were removed seven days later. His facial injury left a permanent scar.

Defendant gave the jury a different account. According to defendant, he and three of his friends were walking together through Gateway Center when he bumped into Espinal. Espinal made a facial expression and said "something in Spanish." Believing Espinal had said "nothing nice," defendant confronted Espinal. Espinal and defendant exchanged profanities.

Defendant testified that one of his friends "tried to jump in it," but defendant grabbed his friend and told him to "leave it alone." His friend pushed defendant away and punched Espinal. Defendant and his friends walked away. According to defendant, he never asked Espinal for money and he did not see anyone go through Espinal's pockets or take Espinal's wallet. He further testified that he did not see a weapon in his friend's hand when his friend punched Espinal.

B.

Espinal gave a statement to the Newark Police Department after he left the hospital. The Newark Police Department, in turn, opened an investigation into the incident. As part of the investigation, law enforcement created a flyer using still images from the surveillance video captured at Gateway Center. Investigators circulated the flyer within the police department via email. A sergeant, who had past interactions with defendant, identified one of the photos as defendant.

Detective Filberto Padilla later conducted a six-photo array at Espinal's home. Espinal selected defendant's picture as depicting his assailant. Newark Police arrested defendant the following day on July 20, 2012.

**138C.

On October 17, 2012, an Essex County Grand Jury returned an indictment against defendant charging him with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(b) ; first-degree robbery, N.J.S.A. 2C:15-1 ; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) ; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The *907indictment did not charge defendant with aggravated assault.

The State's case against defendant went to trial before a jury on January 23, 2014 under a theory of accomplice liability. At the close of the evidence, the court conducted a charge conference. At no point did either party request an aggravated assault charge. During its closing argument, the State asserted that robbery means "in the course of committing a theft, a person causes bodily injury or uses force," and that using a deadly weapon "makes it a first degree robbery." Defense counsel did not object to the State's explanation.

After summations, the trial court instructed the jury to disregard statements by the attorneys that conflict with the court's charges. The trial court proceeded to instruct the jury on the charges in the indictment. The court read the State's robbery-indictment charge verbatim:

[Defendant] ... did knowingly commit an act of robbery upon Ernesto Espinal, and in the course of committing said robbery was armed with, did use, or threaten the immediate use of what appeared to be a deadly weapon, a knife contrary to the provisions of N.J.S.A. 2C:15-1, a crime of the first degree and against the peace of this State, the Government and dignity of same.

The trial court instructed the jury that "[a] person is guilty of robbery if in the course of committing a theft he knowingly inflicts bodily injury or uses force upon another." It then explained each element the State had to prove beyond a reasonable doubt to sustain a robbery conviction. Later, the court instructed:

Robbery is a crime of the second degree except that it is a crime of the first degree if the actor is armed with or uses or threatens the immediate use of a deadly weapon. In this case the State must prove beyond a reasonable doubt that the **139defendant was armed with a deadly weapon while in the course of committing the robbery.

Defense counsel neither requested an aggravated assault charge nor objected to its omission from the trial judge's jury instructions. The jury convicted defendant of all charges. At sentencing, the trial court merged the conspiracy conviction into the robbery conviction and sentenced defendant to an aggregate fifteen-year term of imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2(a).

D.

Defendant appealed his convictions. In an unpublished opinion, a two-member Appellate Division panel reversed and remanded for a new trial.

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183 A.3d 903, 233 N.J. 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alexander-nj-2018.