STATE OF NEW JERSEY VS. AMIR LEGRANDEÂ (13-10-1875, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4900-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AMIR LEGRANDE, a/k/a
YUNG SNOW,
Defendant-Appellant.
_____________________________
Argued April 5, 2017 – Decided August 7, 2017
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 13-10-1875.
Margaret McLane, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Ms. McLane, of counsel and on the briefs).
Eric P. Knowles, Assistant Prosecutor, argued
the cause for respondent (Esther Suarez,
Hudson County Prosecutor, attorney; Mr.
Knowles, on the brief).
PER CURIAM
A Hudson County grand jury returned Indictment No. 13-10-
1875, charging defendant Amir Legrande with second degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5b; second degree
possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-
4a; second degree conspiracy to commit aggravated assault,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b(1); second degree aggravated
assault, N.J.S.A. 2C:12-1b(1); and second degree possession of a
firearm following a conviction for one of the offenses listed in
N.J.S.A. 2C:39-7b.
Defendant was tried before a jury and convicted of second
degree conspiracy to commit aggravated assault. The jury acquitted
defendant of the remaining charges.1 The trial judge sentenced
defendant to a term of eight years, with an eighty-five percent
period of parole ineligibility and three years of parole
supervision, as mandated by the No Early Release Act, N.J.S.A.
2C:43-7.2.
On appeal, defendant argues the trial court erred by failing
to instruct the jury on the lesser included offenses associated
1
In Indictment No. 13-10-1874, defendant was charged with third
degree possession of methylone, contrary to N.J.S.A. 2C:35-10a(1).
In Indictment No. 13-01-0003, defendant was charged with three
counts of fourth degree unlicensed entry into a structure, contrary
to N.J.S.A. 2C:18-3a. Pursuant to a negotiated agreement with the
State, defendant disposed of these two indictments by pleading
guilty to third degree possession of methylone and one count of
fourth degree unlicensed entry.
2 A-4900-14T4
with second degree conspiracy to commit aggravated assault. With
respect to the portion of the indictment charging him with second
degree aggravated assault, defendant asserts the trial judge
properly instructed the jury on the lesser included offense of
third degree aggravated assault, as well as the disorderly persons
offense of simple assault. Defendant argues the trial judge should
have taken the same approach with respect to the portion of the
indictment charging him with second degree conspiracy.
Specifically, defendant argues the trial judge should have
instructed the jury to consider the lesser included offenses of
conspiracy to commit third degree aggravated assault and
conspiracy to commit fourth degree aggravated assault.
In a letter-brief submitted in lieu of a formal brief pursuant
to Rule 2:6-2(b), the State argues defense counsel's failure to
request an instruction on lesser included offenses for the
conspiracy count shows the inapplicability of this doctrine to the
facts of this case. Alternatively, the State argues defendant has
not shown that the trial judge committed plain error under Rule
2:10-2. Finally, the State argues there was no rational basis for
the trial court to instruct the jury on fourth degree conspiracy
to point a deadly weapon under N.J.S.A. 2C:12-1b(4) because the
victim was shot in the back as he drove away in his car. In
support of this argument, the State notes that codefendant Michael
3 A-4900-14T4
A. Pasuco's testimony did not mention anything about using the
handgun to merely scare the victim.
After reviewing the evidence presented at trial, we are
convinced there was a rational basis to instruct the jury on the
lesser included offenses of conspiracy to commit third degree
aggravated assault, N.J.S.A. 2C:12-1b(2); and conspiracy to commit
fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4). If
properly instructed, the jury could have considered the overt acts
described in the indictment as well as the evidence presented at
trial to find defendant guilty of one of these two lesser included
offenses.
The State has adopted the statement of material facts
described in defendant's appellate brief. See R. 2:6-2(a)(5).
We will thus consider the following facts uncontested for the
purpose of this appeal.
Pasuco and defendant were indicted as codefendants in this
case. Pasuco pled guilty to second degree unlawful possession of
a firearm, N.J.S.A. 2C:39-5b. As part of his plea agreement with
the State, Pasuco agreed to testify against defendant in this
trial. S.G.2 also testified as a witness for the State.
2
We use initials to protect the privacy of the fact witnesses who
testified in this trial.
4 A-4900-14T4
On May 25, 2013, approximately thirty to forty people boarded
a private "party bus" in Jersey City to travel to Seaside Heights
to celebrate S.G.'s twenty-first birthday. Defendant and a man
we identify as J.R. were among the revelers. S.G. testified that
defendant was seated in the "VIP section" in the rear part of the
bus. J.R. was seated in the front of the bus with his girlfriend.
J.R. testified that his recollection of the night was somewhat
unclear because it "was like a year ago[]" and he was "drunk that
night."
At some point during the trip, J.R. claimed he was involved
in an altercation. In response to the prosecutor's questioning,
J.R. reiterated that his memory of what occurred was hazy: "I
don't know if I was[] personally[] fighting. I thought it was
like a brawl[.]" J.R. could not recall how many people were
involved in the "brawl" because the lights were off. By contrast,
S.G. testified that no fight occurred on the bus. The trip to
Seaside Heights took approximately two hours. According to S.G.,
defendant remained in the VIP section the entire time.
The bus arrived back in Jersey City between 3 a.m. and 4 a.m.
on May 26, 2013. J.R. testified that he was one of the first
people to exit the bus. When asked if his girlfriend was with him
when he stepped off the bus, he responded: "No, I was going home
-- matter of fact, I had to go to work, or something like that.
5 A-4900-14T4
No, she wasn't with me." As he walked to his car, J.R. testified
that he heard gunshots. He gave the following account of what
transpired next:
Q. Were the shots near you?
A. I don't know. I just heard shots.
Q. Okay. So then you got into your car and you
sped away backwards?
A. Yeah.
Q. And you hit a tree or a sidewalk. Correct?
A. Yeah, I -- I guess I hit a tree. I hit
something.
Q. Okay. Do you remember what you hit?
A. No, see, after that I don't remember
nothing [sic].
. . . .
Q. Did you think the shots were meant for you?
A. I wasn't thinking if they [were] meant for
me. I just heard shots so I'm trying to get
low.
There were bullet holes in J.R.'s car after the shooting. A
bullet also "grazed" J.R. in his lower back. The trial judge
described the location of J.R.'s injury as "[r]ight above [his]
waist[.]" J.R. was not injured in any other way. The State did
not produce any medical evidence to describe the severity of the
injury. J.R. did not see who was shooting. When asked if defendant
6 A-4900-14T4
was involved in the shooting, J.R. responded: "No, I never seen
[sic] him before." The record shows J.R. was an uncooperative
witness who made clear that he did not want to pursue this case.
Q. Now you indicated on direct [examination]
. . . [that] you've been visited by detectives
a couple of times. Right?
A. Yeah.
Q. And were you ever asked if you could
identify the person who --
A. No.
Q. -- fired the gun? The police never asked
you to?
A. Nope.
Q. Did you ever tell them that you could?
A. No, I didn't. I told them over, and over,
I don't remember. And I told them to leave
me alone. Like they keep coming to my house.
I don't wanna [sic] be bothered. I don't even
really wanna [sic] be -- I want -- I can't --
I gotta [sic] leave. I got things to do.
Pasuco was not on the party bus. He testified that defendant
borrowed his 2010 Dodge Charger at approximately 8 p.m. on May 25,
2013. About three hours later, Pasuco received a call from
defendant asking him how quickly he could get to Seaside Heights
because "he had [gotten] into a fight on the party bus and . . .
he didn't wanna [sic] take it back." When Pasuco told defendant
7 A-4900-14T4
he could not make the trip to Seaside Heights, Pasuco claimed
defendant decided to take the bus back to Jersey City.
Approximately thirty minutes later, defendant called Pasuco
again. This time, Pasuco testified defendant told him "to go and
get his gun[.]" Defendant told Pasuco he had parked the Dodge
Charger in the parking lot of Our Lady of Mercy Academy before
boarding the bus to Seaside Heights, and he had placed his handgun
underneath the tire of a grey vehicle parked nearby. Pasuco drove
to the parking lot in his sister's car and retrieved the handgun.
Pasuco then received a text message from defendant advising him
that the bus was fifteen minutes away. Defendant told Pasuco that
he wanted the handgun as soon as he arrived.
Pasuco drove the Charger to where the bus was scheduled to
arrive and waited. He soon saw the bus pull up. According to
Pasuco, defendant was "almost the last [person to get] off the
bus." Pasuco walked to meet defendant and said: "[W]hat's going
on?" Defendant responded: "Oh nothing. You know, the kid . . .
must have went home." Despite defendant's previous instructions,
Pasuco did not hand the gun over to defendant. Pasuco testified
he was waiting for defendant to say: "Oh, give it to me[.]" Pasuco
gave the following account of what occurred next: "As we're
walking[,] . . . a greenish car . . . starts flying down Lembeck
[Avenue] and pulls into the . . . driveway . . . like towards the
8 A-4900-14T4
left of where the cars are parked[.] . . . [H]e[] . . . speeds
in and . . . he gets out . . . of his car and he starts to argue
with . . . us."
Pasuco claimed the unidentified driver screamed and cursed
at them. In the midst of this verbal dispute, Pasuco testified
defendant told him "to give him the gun[.]" Pasuco claimed he was
"frozen up[.]" Eventually, as Pasuco reached into his pocket,
defendant "grab[bed]" the gun. At this point, someone threw a
bottle at the unidentified driver's car, and the driver sped away.
Pasuco testified that he heard a single gunshot followed by the
sound of broken glass. He did not see defendant fire the gun
because he was running away from the scene.
Pasuco drove his sister's car back to his home after the
shooting took place. Defendant arrived with the Dodge Charger
approximately five minutes later. Pasuco then drove defendant and
two other friends home. Pasuco testified that during the ride,
defendant said: "Oh, when I drink, man, I don't know . . . what
the fuck I'm doing[.] . . . I didn't wanna [sic] do that." Pasuco
also testified that he overheard the two friends saying they had
"stashed" the handgun.
Against this record, defendant raises the following arguments
on appeal:
9 A-4900-14T4
POINT I
THE COURT'S [FAILURE] TO CHARGE THE JURY ON
ANY LESSER-INCLUDED OFFENSES WITH RESPECT TO
THE CONSPIRACY CHARGE REQUIRES REVERSAL OF
DEFENDANT'S CONVICTION. (Partially Raised
Below).
POINT II
DEFENDANT'S EIGHT-YEAR SENTENCE WITH AN
[EIGHTY-FIVE PERCENT] PAROLE DISQUALIFIER IS
EXCESSIVE.
N.J.S.A. 2C:1-8e cautions trial courts not to charge the jury
"with respect to an included offense unless there is a rational
basis for a verdict convicting the defendant of the included
offense." However, a trial judge has an independent, non-delegable
duty "'to instruct on lesser-included charges when the facts
adduced at trial clearly indicate that a jury could convict on the
lesser while acquitting on the greater offense.'" State v.
Funderburg, 225 N.J. 66, 76 (2016) (quoting State v. Jenkins, 178
N.J. 347, 361 (2004)). Thus, even if neither the State nor
defendant requests the trial judge to instruct the jury on a lesser
included offense, the court must sua sponte provide such an
instruction when appropriate. State v. Maloney, 216 N.J. 91, 107
(2013) (quoting State v. Thomas, 187 N.J. 119, 132 (2006)).
An offense is "included" when:
(1) It is established by proof of the same or
less than all the facts required to establish
the commission of the offense charged; or
10 A-4900-14T4
(2) It consists of an attempt or conspiracy
to commit the offense charged or to commit an
offense otherwise included therein; or
(3) It differs from the offense charged only
in the respect that a less serious injury or
risk of injury to the same person, property
or public interest or a lesser kind of
culpability suffices to establish its
commission.
[N.J.S.A. 2C:1-8d (emphasis added).]
During the Rule 1:8-7(b) charge conference, the trial judge
considered instructing the jury on lesser included offenses with
respect to defendant's alleged conspiracy to commit second degree
aggravated assault. The judge ultimately decided against giving
this instruction based on the indictment's description of
defendant's overt acts, which provided:
Michael Pasuco retrieved a [r]evolver and
brought it to the parking lot of Our Lady of
Mercy Church, at the direction of Amir
Legrande. Amir Legrande then took the gun and
used it to discharge four bullets in the
direction of [J.R.].
The judge concluded:
[T]he jury would have to be instructed that
the aggravated assault that makes up the
conspiracy is only that . . . contained in the
[i]ndictment, not any of the lesser included
[offenses] that I'm charging. It has to be
an attempt to . . . purposely or knowingly
cause serious bodily injury, and that's it.
11 A-4900-14T4
As this passage shows, the trial judge mistakenly believed the
lesser included offense analysis required under N.J.S.A. 2C:1-8(d)
was bound by the four corners of the overt acts described in the
indictment.
The evidence presented at trial clearly provided a rational
basis to instruct the jury on the lesser included offenses of
conspiracy to commit third degree aggravated assault, N.J.S.A.
2C:12-1b(2); and conspiracy to commit fourth degree aggravated
assault, N.J.S.A. 2C:12-1b(4). The jury could have found from
Pasuco's testimony that defendant only wanted to have the gun
available to him when he returned to Jersey City. Stated
differently, the original conspiracy did not exclusively involve
actually shooting anyone.
Because defendant did not request these charges, we review
the trial judge's decision for plain error. R. 2:10-2. As applied
to jury instructions, plain error requires us to determine whether
the charge's impropriety "prejudicially affect[ed]" defendant's
"substantial rights" and was "sufficiently grievous" to convince
us that the error had a "clear capacity to bring about an unjust
result." State v. Chapland, 187 N.J. 275, 289 (2006) (citation
omitted). We are satisfied the trial judge's error had the clear
capacity to produce an unjust result.
12 A-4900-14T4
Aside from second degree conspiracy, the jury acquitted
defendant of all charges in the indictment, including unlawful
possession of a handgun and possession of a handgun for an unlawful
purpose. The only evidence of conspiracy came from Pasuco's
testimony. Pasuco testified that defendant told him "to go and
get his gun." There is no other evidence revealing the
conspiracy's underlying purpose. The failure to provide the jury
with the options we have discussed sealed defendant's fate. Under
these circumstances, the record "clearly indicated" the jury
should have been charged with the lesser included offenses
applicable to second degree conspiracy, see State v. Rivera, 205
N.J. 472, 475 (2011), and the trial judge's error constituted a
manifest injustice.
We are compelled to reverse defendant's conviction and remand
this matter for a new trial. In this light, we will not address
defendant's argument attacking the reasonableness of his sentence.
Reversed and remanded. We do not retain jurisdiction.
13 A-4900-14T4