STATE OF NEW JERSEY VS. INOW RAINEY (15-03-0547, OCEAN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0623-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
INOW RAINEY,
Defendant-Appellant.
_________________________
Submitted December 14, 2020 – Decided March 25, 2021
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 15-03-0547.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stefan Van Jura, Assistant Deputy Public
Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Lisa Sarnoff
Gochman, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant appeals from his jury trial convictions for armed robbery,
aggravated assault, weapons offenses, and drug offenses. The charges arose
from a home-invasion robbery. Defendant and two codefendants were arrested
minutes after the crime was committed. The vehicle in which they were arrested
contained the gun used in the robbery and a ski mask bearing defendant's DNA.
Both codefendants testified at trial that defendant was the mastermind.
Defendant now claims for the first time on appeal that several errors were
committed at trial. After carefully reviewing the record in light of the applicable
legal principles, we reject defendant's contentions and affirm.
I.
A Monmouth County Grand Jury charged defendant and codefendants
Earl Snyder and Tylee Handley with (count one) first-degree armed robbery,
N.J.S.A. 2C:15-1; (count two) second-degree conspiracy to commit armed
robbery, N.J.S.A. 2C:5-2 and 2C:15-1; (count three) second-degree burglary,
N.J.S.A. 2C:18-2; (count four) second-degree aggravated assault, N.J.S.A.
2C:12-1(b)(1); (count five) third-degree aggravated assault with a deadly
weapon, N.J.S.A. 2C:12-1(b)(2); (count six) third-degree terroristic threats,
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N.J.S.A. 2C:12-3(b); (count nine) 1 first-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b), (j); (count ten) second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); (count eleven) fourth-
degree possession of marijuana, N.J.S.A. 2C:35-5(b)(11); (count twelve) third-
degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35 -
5(b)(11); (count thirteen) third-degree possession of marijuana within 1000 feet
of school property with intent to distribute, N.J.S.A. 2C:35-7; (count fourteen)
second-degree possession of marijuana within 500 feet of a public park with
intent to distribute, N.J.S.A. 2C:35-7.1; (count fifteen) second-degree
possession of a firearm in the course of committing a drug offense, N.J.S.A.
2C:39-4.1(a); and (count seventeen) second-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(b)(1).
1
Count seven separately charged codefendant Snyder with second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Count eight charged
only codefendant Handley with first-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b). Count sixteen charged codefendant Handley with second-
degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1).
After defendant's trial, Handley pled guilty to first-degree armed robbery and
was sentenced to an eight-year term of imprisonment subject to the No Early
Release Act (NERA), N.J.S.A. 2C:47-3.2. Snyder pled guilty to second-degree
armed robbery and was sentenced to a five-year term of imprisonment subject
to NERA.
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Prior to trial, the trial court granted the State's motion to dismiss count
fourteen (possession of marijuana near a public park). The trial took place over
the course of eight non-consecutive days. At the conclusion of the State's case-
in-chief, the trial court denied defendant's motion for judgment of acquittal on
counts two (conspiracy to commit armed robbery), four (aggravated assault),
and five (aggravated assault with a deadly weapon), but granted defendant's
motion for a judgment of acquittal on counts twelve (possession of marijuana
with intent to distribute), thirteen (possession of marijuana within 1000 feet of
school property with intent to distribute), and fifteen (possession of a firearm in
the course of committing a drug offense).
The jury thereafter found defendant guilty of counts one (armed robbery),
three (burglary), the disorderly persons offense of simple assault as a lesser-
included offense of count five (aggravated assault with a deadly weapon), six
(terroristic threats), nine (unlawful possession of a weapon), ten (possession of
a weapon for an unlawful purpose), and eleven (possession of marijuana). The
jury acquitted defendant of counts two (conspiracy to commit armed robbery)
and four (aggravated assault). In a bifurcated proceeding, the jury found
defendant guilty of count seventeen (second-degree certain persons not to have
weapons).
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At the sentencing hearing, the court denied defendant's motion to dismiss
the armed robbery guilty verdict as against the weight of the evidence. The court
granted the State's motion to sentence defendant to an extended term of
imprisonment pursuant to N.J.S.A. 2C:43-6(c). The court sentenced defendant
on the first-degree armed robbery conviction to a twenty-five-year term of
imprisonment subject to NERA. On count three (second-degree burglary), the
court imposed a five-year term of imprisonment subject to NERA, to be served
concurrently to count one. The court merged counts five (simple assault) and
six (third-degree terroristic threats) into counts one and three. On count nine
(first-degree unlawful possession of a handgun), the court sentenced defendant
to a ten-year period of imprisonment with a forty-two-month period of parole
ineligibility, to be served concurrently to count one. On count ten (second -
degree possession of a firearm for an unlawful purpose), the court sentenced
defendant to a five-year prison sentence with a two-and-one-half-year period of
parole ineligibility, to be served concurrently to count one. On count eleven,
(fourth-degree possession of marijuana), the court sentenced defendant to a one-
year prison term concurrent to count one. Finally, on count seventeen (second-
degree certain persons not to have a weapon), the court imposed a five-year
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prison term concurrent to count one. Defendant was ordered to pay restitution
to two of the victims.
Because the strength of the State's case is a relevant consideration in
applying the plain error rule, we recount the proofs elicited at trial in
considerable detail. The evidence focused on defendant's involvement in a
home-invasion robbery committed in November 2014.
All four persons present in the home during the invasion testified at trial.
C.S.2 testified that at 4:00 a.m., he was awoken by his girlfriend, T.K., after she
heard yelling coming from a different bedroom in the house they shared with
another couple, T.M. and M.M. Before C.S. could investigate the noise, the
bedroom door was opened by a man with a gun. The man was wearing gloves
and a black cloth ski mask. C.S. described the man as having a "skinny build."
The thin masked man pointed a gun at C.S. and T.K. and ordered them to
get on their knees and crawl on the floor to the other bedroom. C.S. and T.K.
complied. In the next bedroom, they encountered another masked man standing
over M.M. and T.M., who were lying prone on their bed. The man was wearing
2
We use initials throughout this opinion to respect the privacy of the crime
victims.
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a "silver- [or] chrome-colored mask . . . [with] a smile and eye holes," and
gloves. He was described as "kind of a fat . . . or . . . heavyset guy."
C.S. testified the "fat guy" hit T.M. with his fists and demanded money
and marijuana. The heavyset assailant stated that he was "going to shoot the
bitch" and asked the thinner robber for the gun. The thinner invader handed
over the gun, after which the heavyset assailant pistol-whipped T.M. in the back
of the head. The heavyset assailant also struck M.M. in the back of the head
with the gun. C.S. next was punched, kicked, and struck in the back of the head
with the gun, causing him to lose consciousness.
The two masked men took turns ransacking the house looking for money
or valuables. They took $1000 found in a bedside drawer and another $200 in
M.M.'s wallet. They also took a jar of marijuana, three watches, jewelry, and a
Gucci belt.
The entire encounter lasted around twenty minutes. Once the robbers left,
C.S. escaped from the house and ran to a neighbor's house for help. There, he
called the police. T.M., M.M, and C.S. went to a hospital, where they all
required staples to close their head wounds.
Shortly after the robbery, an Asbury Park police officer conducted a traffic
stop of a vehicle with an altered license plate that had pulled over to the side of
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the road without using a turn signal. Defendant was seated in the front passenger
seat, codefendant Snyder was in the driver's seat, and codefendant Handley was
in the rear passenger seat. As he approached the vehicle, the officer noticed a
metal-colored Halloween mask on the rear floorboard near Handley, black
gloves on the back seat, and a black ski mask on defendant's lap. He also smelled
the odor of raw marijuana. 3 The officer testified that all three occupants
appeared nervous.
The officer ran a warrant check on the driver, Snyder, which revealed an
outstanding traffic warrant. Snyder was arrested and consented to the officer's
request for permission to search the vehicle. Before the search, all three men
exited the vehicle, which was recorded on the police vehicle's mobile video
recorder (MVR). The video shows defendant putting on a black vest.
The consent search of the vehicle revealed a handgun, a mason jar and
sandwich bag containing marijuana, jewelry, watches, and a Gucci belt. Three
3
We note that N.J.S.A. 2C:35-5(b)(12)(b)(1), enacted on February 22, 2021 as
P.L. 2021, c. 19, §1, now provides in relevant part that "[t]he odor of marijuana
. . . shall not constitute reasonable articulable suspicion to initiate a search of a
person . . . ." Defendant did not move before the trial court to suppress the
physical evidence found in the vehicle pursuant to the consent search authorized
by the driver. Nor has defendant sought leave to file a supplemental brief on
whether the new statutory provision has retroactive effect or any bearing on the
search conducted in this case, and we offer no opinion on those questions.
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pairs of gloves and the two facemasks (the Halloween mask and the black knit
ski mask) were also found in the vehicle. The officer observed what appeared
to be blood on the bottom of the handle of the gun. DNA testing showed the
blood had come from T.M. During a search at the police station, police
recovered $37 from defendant, $56 from Snyder, and $1247 from Handley. The
arrest reports indicate defendant was 5' 7'' tall and weighed 135 pounds; Handley
was 5' 3'' tall and weighed 235 pounds; and Snyder was 5' 10'' tall and weighed
205 pounds.
T.K. identified: the gloves, masks, and gun used by the robbers; the
sweatshirts, pants, and boxer shorts worn by the robbers; and the various items
stolen from the home. C.S. identified: the gun, masks, and sweatshirts. M.M.
identified: the gun, masks, sweatshirts, pants, and gloves used by the robbers,
as well as the mason jar of marijuana and the Gucci belt. T.M. identified: the
masks and clothing used by the robbers.
M.M., C.S, and T.K. were shown the video of the traffic stop recorded by
the MVR. The audio from the video was muted and the defendants' faces were
blacked out. Each victim testified the clothing worn by two of the men (Handley
and defendant) looked like the clothing worn by the robbers, other than the vest
defendant put on as he exited the vehicle. The victims also testified that one of
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the men appeared to have a similar build to the thin robber and the other had a
similar build to the heavyset robber.
After the arrest, Monmouth County Prosecutor's Office (MCPO)
Lieutenant Scott Samis responded to the Asbury Park Police Department to
assist with the investigation. At the police station, Lieutenant Samis advised
Snyder of his Miranda rights, which Snyder waived. Snyder informed Samis
where the crime occurred. When Snyder learned there was blood on the gun
used in the robbery, he expressed surprise, because "no one [was] supposed to
get hurt." Snyder provided crucial information relating to his role and the roles
of the other defendants in the robbery.
Snyder and Handley both testified for the State in exchange for reduced
sentences. Snyder testified that he met with defendant and sold him a handgun.
During that meeting, defendant discussed his plan to rob the victims' house. The
two agreed to commit the robbery together and planned to reconvene later that
day.
At around 10:00 p.m., the pair met and drove to the victims' house.
However, upon seeing the house, Snyder realized he knew T.M. and became
reluctant to carry out the planned robbery. Defendant then contacted Handley,
who agreed to participate in the robbery. Defendant and Snyder drove to Asbury
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Park, picked up Handley at around 2:00 or 3:00 a.m., and explained the plan for
the robbery. The trio then drove to defendant's apartment to retrieve the gun,
black gloves, and masks. Around 4:00 a.m., Handley and defendant committed
the robbery while Snyder remained in the vehicle.
Handley also testified concerning his involvement in the robbery. His
testimony was generally consistent with Snyder's testimony and with the
accounts given by the four victims. Handley testified that, after the robbery, he
and defendant ran to Snyder's car and stashed the gun and robbery proceeds in
the glovebox before driving to Asbury Park. Handley identified the Halloween
mask he wore and the black cloth ski mask that defendant wore.
MCPO Detective Robert Flanigan testified that a latent fingerprint lifted
from the Halloween mask matched a print of Handley's left thumb. Defendant's
fingerprints were not found on any items related to the robbery. However, DNA
analysis identified defendant as the source of the major DNA profile found on
the black knit ski mask recovered from Snyder's vehicle. Defendant also was
identified as the source of a major DNA profile found on one set of gloves found
in Snyder's car.
II.
Defendant presents the following contentions for our consideration:
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POINT I
DEFENDANT WAS DENIED DUE PROCESS AND
A FAIR TRIAL WHEN THE STATE ELICITED
TESTIMONY FROM AN INVESTIGATING
DETECTIVE THAT THE STATE ENGAGES IN
PROFFER SESSIONS TO MAKE DEALS WITH
"BAD" PEOPLE—I.E., CO-DEFENDANT
HANDLEY—"TO GET THE WORST PEOPLE"—
I.E., DEFENDANT. (Not Raised Below).
POINT II
THE FAILURE TO ISSUE A "MERE PRESENCE"
CHARGE WITH RESPECT TO DEFENDANT'S
PRESENCE IN THE CAR DENIED HIM DUE
PROCESS AND A FAIR TRIAL. (Not Raised Below).
POINT III
THE TRIAL COURT'S FAILURE TO PROVIDE THE
JURY WITH ANY GUIDANCE ON HOW IT
SHOULD ASSESS THE VICTIMS'
IDENTIFICATIONS OF DEFENDANT FROM THE
MVR DENIED DEFENDANT DUE PROCESS AND
A FAIR TRIAL. (Not Raised Below).
POINT IV
THE THREE ERRORS ASSERTED SUPRA HAD A
CUMULATIVE IMPACT ON DEFENDANT'S
RIGHT TO DUE PROCESS AND A FAIR TRIAL.
(Not Raised Below).
We begin our analysis by acknowledging certain legal principles that
govern this appeal. As we have noted, defendant did not raise any of his
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contentions on appeal to the trial court. His failure to object below constitutes
a waiver of the right to challenge the alleged trial errors on appeal. R. 1:7-2.
Nevertheless, we may review each contention for plain error. R. 2:10-2. We
choose to address all of defendant's contentions on their merits.
Under the plain error standard, we disregard any error or omission unless,
in the interests of justice, we conclude "it is of such a nature as to have been
clearly capable of producing an unjust result." Ibid. This standard is demanding
and aims to "provide[] a strong incentive for counsel to interpose a timely
objection, enabling the trial court to forestall or correct a potential error." State
v. Bueso, 225 N.J. 193, 203 (2016).
We first address defendant's contention that Lieutenant Samis made
inappropriate and prejudicial remarks when explaining to the jury why the State
entered into a proffer agreement with codefendant Handley. Defendant argues
Samis's testimony injected improper character evidence and led the jury to
convict him because he had a history of criminal conduct and a propensity for
criminality. Defendant further claims that Lieutenant Samis's testimony
concerning the need to corroborate Handley's testimony as part of the proffer
agreement process unfairly bolstered Handley's credibility. We disagree with
both arguments relating to the lieutenant's testimony.
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The specific testimony defendant now challenges came in the form of
Lieutenant Samis's explanation of the purpose and mechanics of a "proffer
agreement." The lieutenant began by explaining,
A proffer is where an attorney and their client who is
the defendant come into the prosecutor's office with the
prosecutor who is running the case and we call it—it's
like a queen of the day letter. They have rights. They're
able to sign the form, which technically [] protects their
rights. So, they're able to talk about any crime
committed and we're not going to go out and arrest them
or investigate. The only time we could do that, is if
they took the stand and they lied about it. So,
specifically it protects them. And what we want them
to do in the session is talk about crimes. Talk about
what took place. Give us the information that we need
to prosecute and put cases together, and again, it gives
them eventually consideration for the charges later on.
The following exchange then occurred:
[Prosecutor]: Shouldn't you be arresting people if
they're telling you bad stuff?
[Samis]: This is a great tool for law enforcement,
especially investigations. We need bad to get bad.
Sometimes you have to make deals with bad people to
get the worst people. And in these cases, we're able to
get some people inside who have done these bad things
and they're able to provide us information that we're
able to solve cases and certainly make great cases
better, because of their cooperation and knowledge that
we don't have.
[(emphasis added).]
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The lieutenant further testified that consideration in the form of a reduced
sentence is given only after law enforcement has corroborated the information
provided in the proffer session. Specifically, the following exchange occurred:
[Prosecutor]: So, . . . the day that somebody gets to
come in and give all this information, there are no talks
about numbers or consideration or promises or anything
like that on that first day; is that correct?
[Samis]: [W]e never talk about promises . . . . it's
always consideration. But, again, that's the first step.
We also have to corroborate the information. They can
come in and say, you know, I know who killed this
person, that person, and that's just talk. We have to
corroborate, investigate, make sure what they're giving
us is correct.
....
[Prosecutor]: So, in this particular instance, both
[Handley] and [Snyder] agreed to cooperate; is that
correct?
[Samis]: They did. Yes.
[Prosecutor]: Okay. And in exchange for that, did they
receive what you told us about? This consideration?
[Samis]: Yes. They got consideration on their
sentences . . . .
[(emphasis added).]
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Lieutenant Samis then testified in a manner that, according to defendant,
combined the prejudice of improper character evidence and unfair testimony that
bolstered the credibility of Handley and Snyder. The lieutenant testified:
[A]gain, you need bad guys to get bad guys. You need
the worst to get the worst. When you make these offers
and we stick by them, later on some of these guys get
out and some of them again get into trouble. So, if we
stick by our word and we're doing the right thing by
them and you could get a case again, you're hopeful that
you can work another case out or you can solve another
crime because they know we stick to what's doing right.
Again, you know, you talk about ten years [the sentence
Snyder and Handley received under their plea
agreements]. Ten years is a long time. This was a
horrific crime. These guys came forward and took the
responsibility. They testified. They told the truth, I
hope, and that's—they deserve that cooperation and that
ten years.
Lieutenant Samis immediately clarified, however, that he had "no idea" as to the
substance of the codefendants' testimony.
We agree that certain aspects of the lieutenant's testimony were
problematic. Had there been a timely objection, a curative instruction would
have been appropriate. But as we have noted, there was no objection and thus
no opportunity for the trial court to provide a curative instruction. We believe
that in this instance, "failure to 'interpose a timely objection constitutes strong
evidence that' [the challenged testimony] was actually of no moment." State v.
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Tierney, 356 N.J. Super. 468, 481 (App. Div. 2003) (quoting State v. White, 326
N.J. Super. 304, 315 (App. Div. 1999)). See also State v. Frost, 158 N.J. 76, 84
("The failure to object suggests that defense counsel did not believe the remarks
were prejudicial at the time they were made. The failure to object also deprives
the court of an opportunity to take curative action." (citing State v. Bauman, 298
N.J. Super. 176, 207 (App. Div. 1997))); State v. Timmendequas, 161 N.J. 515,
576 (1999) ("Failure to make a timely objection indicates defense counsel did
not believe the remarks were prejudicial at the time they were made." (quoting
State v. Irving, 114 N.J. 427, 444 (1989))).
We believe the lieutenant's explanation of the proffer agreement process
actually supported the defense trial strategy, which sought to paint Handley and
Snyder as untrustworthy criminals who falsely implicated defendant in exchange
for a reduction in their own prison sentences. We add that Lieutenant Samis's
testimony regarding "the worst people," while objectionable, was not
impermissible "other crimes" evidence as defendant now suggests. The
lieutenant did not expressly or impliedly inform the jury that defendant had
committed a crime or bad act other than the ones for which he was being tried. 4
4
The situation would have been quite different if Lieutenant Samis had told the
jury about defendant's prior conviction for armed robbery. However, the jury
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It bears noting that Handley and Snyder testified prior to Lieutenant Samis, and
both codefendants claimed that defendant was the mastermind of the plan to rob
the victims. Viewed in that context, the lieutenant's reference to the "worst"
apparently refers to the most culpable among the persons who committed this
particular crime.
Nor did the lieutenant's testimony impermissibly bolster the credibility of
Handley's and Snyder's testimonies by suggesting that the State had
corroborated their accounts by means of evidence that was not presented to the
jury. The jury heard compelling corroborative evidence linking defendant to the
crime. Although greater caution should have used in eliciting the lieutenant's
explanation of the proffer agreement process, we believe that jurors understand
innately that an agreement to reduce a sentence in exchange for testimony
presupposes such testimony will be truthful. It bears emphasizing that the jury
was properly instructed that they alone determine the credibility of witnesses. 5
was not informed of defendant's prior conviction until the second stage of the
bifurcated trial on the "certain persons" gun charge.
5
Specifically, the judge instructed the jury:
You will only consider such facts which in your
judgment has been proven by the testimony of the
witnesses or from exhibits admitted into evidence by
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The lieutenant's testimony did not impermissibly intrude on that critical fact-
finding function reserved to the jury.
We also add that even if the admission of Lieutenant Samis's testimony
constituted error, it did not rise to the level of plain error warranting a reversal.
After carefully reviewing the State's evidence in its entirety, it is clear the
lieutenant's references to the "worst people" and the corroboration component
of cooperating witness agreements were not capable of producing an unjust
result. See State v. Marrero, 148 N.J. 469, 497 (1997) (affirming a conviction
the [c]ourt,", and "[a]s judges of the facts, you are to
determine the credibility of the witnesses . . . you weigh
the testimony of each witness and then determine the
weight to give to it. Through that process, you may
accept all of it, a portion of it, or none of it.
At that time, the judge also gave the model jury charge for testimony of a
cooperating co-defendant or witness as to co-defendants Handley and Snyder,
particularly noting to the jury that
[t]he law requires that the testimony of [these
cooperating witnesses] be given careful scrutiny. In
weighing their testimony, therefore, you may consider
whether they had a special interest in the outcome of
[the] case and whether their testimony was influenced
by the hope or expectation of any favorable treatment
or reward or by any feelings of revenge or reprisal.
[Model Jury Charges (Criminal), "Testimony of a
Cooperating Co-Defendant or Witness" (rev. Feb. 6,
2006).]
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because of the presence of "near overwhelming evidence of guilt independent of
the other-crime evidence"). The testimony from the codefendants and the
victims, coupled with the forensic evidence and defendant's presence in the
getaway vehicle only minutes after the robbery occurred, constitutes
overwhelming evidence of defendant's guilt.
III.
We turn next to defendant's contention that the trial court failed to sua
sponte tailor the "mere presence" jury instruction to the particular circumstances
of this case. Importantly, defendant did not request any changes be made to the
model charge that was given to the jury. In any event, read in context with the
full jury charge, the jury well understood that the "mere presence" instruction
applied to the vehicle and not just the scene of the armed robbery.
"It is a well-settled principle that appropriate and proper jury charges are
essential to a fair trial," and that a jury charge functions as a "road map to guide
the jury and without an appropriate charge a jury can take a wrong turn in its
deliberations." State v. Savage, 172 N.J. 374, 387 (2002) (quoting State v.
Martin, 119 N.J. 2, 15 (1990)). It also is well-settled that when a defendant does
not object to the charge, "there is a presumption that the charge was not error
and was unlikely to prejudice . . . defendant's case." State v. Montalvo, 229 N.J.
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300, 320 (2017) (quoting State v. Singleton, 211 N.J. 157, 182 (2012)).
Relatedly, in State v. Whitaker, we held that reading a model jury charge, as was
done in the present case, "is a persuasive argument in favor of the charge as
delivered." 402 N.J. Super. 495, 513–14 (App. Div. 2008).
"When a prosecution is based on the theory that a defendant acted as an
accomplice, the trial court is required to provide the jury with understandable
instructions regarding accomplice liability." Savage, 172 N.J. at 388. The jury
instructions relating to accomplice liability include the admonition that mere
presence at the scene of a crime is insufficient to establish guilt. Model Jury
Charges (Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6)
Accomplice" (rev. June 11, 2018). This principle also applies to possessory
offenses. State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992).
The trial judge in this case read the following model jury charge:
Mere presence at or near the scene does not make one
[a] participant in the crime, nor does the failure of a
spectator to interfere make him a participant in the
crime. It is, however, a circumstance to be considered
with the other evidence in determining whether he was
present as an accomplice. Presence is not in itself
conclusive evidence of that fact. Whether [the]
presence has any probative value depends upon the total
circumstances. To constitute guilt, there must exist a
community of purpose and actual participation in the
crime committed.
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While mere presence at the scene of the perpetration of
a crime does not render a person a participant in it,
proof that one is present at the scene of the commission
of the crime, without disapproving or opposing it, is
evidence from which, in connection with other
circumstances, it is possible for you as jurors to infer
that he assented thereto, lent to it his [countenance] and
approval and was thereby aiding the same. It depends
upon the totality of the circumstances as those
circumstances appear from the evidence.
[(emphasis added).]
Significantly, the judge also instructed the jury that "you must consider the
accomplice charge separately as to each charge."
These combined instructions clearly informed the jury that mere presence
"at the scene of the perpetration of a crime" was inadequate to establish
defendant's guilt for any offense, including the possessory offenses. Moreover,
the scene of the commission of the possessory gun and drug offenses was not
restricted to the victims' residence but also included Snyder's car.
Furthermore, the judge instructed the jury on the concepts of actual and
constructive possession. For example, the trial court issued the following jury
instruction with respect to possession of a firearm:
[I]n order for a person to be armed with a firearm, the
State must first prove beyond a reasonable doubt that
he was in possession of it. The word possess means a
knowing, intentional control of a designated thing,
accompanied by a knowledge of its character.
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....
This possession cannot merely be a passing control that
is fleeting or uncertain in its nature. In other words, to
possess withing the meaning of the law, the defendant
must knowingly procure or receive the item possessed
or be aware of his control thereof for a sufficient period
of time to have been able to relinquish his control if he
chooses to do so.
It is well-settled that the model actual possession and constructive possession
charges provided to the jury in this case are sufficient to explain the concept of
mere presence and the requirement for additional evidence to establish guilt
beyond a reasonable doubt. State v. Randolph, 228 N.J. 566, 592 (2017); State
v. Montesano, 298 N.J. Super. 597, 612–15 (App. Div. 1997).
In sum, viewing the jury instructions in their entirety leads us to the
conclusion that the trial court was not required to tailor the "mere presence"
model charge with respect to both the robbery scene and Snyder's vehicle. In
the absence of a specific request-to-charge, we do not believe the trial court
committed error—much less plain error—especially in view of the
overwhelming evidence of guilt.
IV.
We likewise reject defendant's claim that the trial court erred by failing to
instruct the jury concerning the victims' identification testimony when they were
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shown the MVR recording of defendant alighting from Snyder's car. At the
charge conference, defense counsel not only failed to request an identification
charge but further explained to the trial court why such an instruction was
unnecessary.6 The victims did not identify defendant and his confederates—the
face masks evidently worked to conceal their features. As we have noted, the
defendant's faces were blacked out from the MVR recording. The victims only
testified that the clothing and physical builds of the individuals in the car were
similar to the robbers.
Defendant's reliance on State v. Jones is misplaced. 224 N.J. 70 (2016).
In Jones, the Court noted, "due process concerns implicated in the pretrial
identification of a person are not present in the identification of physical
evidence." Id. at 93 (quoting State v. Delgado, 188 N.J. 48, 67 (2006)).
However, the Court recognized that "identifying an article of clothing that has
been placed on a suspect during a showup" is fundamentally different from
"merely show[ing] [the victim] the [clothing] they found in the vicinity near
where defendant was located." Ibid. The Jones Court concluded that police
orchestrated an impermissibly suggestive showup identification procedure. In
6
During the charge conference, defense counsel told the court, "I agree that no
one identified my client by [']he's the man that did it, he's sitting at the table,[']
except the two codefendants. . . . The victims did not do that."
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that case, the victim could not identify the defendant after an initial viewing.
The police made Jones put on clothing they suspected had been worn during the
offense, at which point the victim "realized it was him." Id. at 78. The present
case raises none of the suggestibility concerns extant in Jones.
As noted, even were we to determine that the trial court erred with respect
to the jury charge, the omission does not rise to the high bar of plain error. The
evidence linking defendant to the crime is overwhelming. As the Court noted
in State v. Cotto, although "[f]ailure to issue [an identification] instruction may
constitute plain error," that "determination . . . depends on the strength and
quality of the State's corroborative evidence." 182 N.J. 316, 326 (2005) (internal
citations omitted). During trial in this case, the victims again viewed and
positively identified the articles of clothing taken from defendant and Handley
after their arrest. This identification of the clothing was independent of the
victims' identification of the clothing worn by defendants in the MVR recording.
Additionally, the arrest report was introduced into evidence. That report showed
that Handley and Snyder were both much heavier than defendant. Therefore,
the distinctive builds of defendant and Handley were put before the jury
independent of the victims' testimony relating to the MVR recording.
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Considering the overwhelming evidence of guilt, none of the errors
asserted by defendant on appeal, whether viewed individually or collectively,
provide a basis to overturn the verdict. To the extent we have not addressed
them, any remaining arguments raised by defendant lack sufficient merit to
warrant discussion. R. 2:11-3(e)(2).
Affirmed.
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