State of New Jersey v. Andre L. Wheeler ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0617-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDRE L. WHEELER, a/k/a
ANDRE WHEELER, and
SLICK, SLICK SLICK,
SLICK L. WHEELER,
Defendant-Appellant.
_________________________
Argued February 12, 2024 – Decided February 22, 2024
Before Judges Mawla and Vinci.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment Nos. 19-01-0012,
21-01-0015, and 21-04-0341.
Kevin Scott Finckenauer, Assistant Deputy Public
Defender, argued the cause for appellant (Jennifer
Nicole Sellitti, Public Defender, attorney; Kevin Scott
Finckenauer, of counsel and on the briefs).
Boris Moczula, Deputy Attorney General, argued the
cause for respondent (Matthew J. Platkin, Attorney
General, attorney; Boris Moczula, of counsel and on the
brief).
PER CURIAM
Defendant Andre L. Wheeler appeals from his conviction, following a jury
trial, of second-degree robbery, N.J.S.A. 2C:15-1(a)(1), arguing the jury charge
failed to comply with our Supreme Court's decision in State v. Lopez, 187 N.J.
91 (2006). Based on our review of the record and applicable legal principles,
we affirm.
We summarize the facts developed in the record. Defendant was indicted
by a Hudson County grand jury for second-degree robbery, N.J.S.A. 2C:15-
(a)(1), among other charges, arising out of an incident that occurred on October
15, 2018, in Hoboken. In September 2021, defendant was tried before a jury.
The female victim of the alleged robbery, who was twenty-five years old at the
time of the incident, testified that she returned to her apartment building late in
the evening and saw a man she did not recognize, later identified as defendant,
ripping open packages that had been delivered to the building. The victim
walked past defendant and entered the elevator. Defendant followed her into
the elevator. He stood no more than one foot from the victim, eyeing her up and
down.
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As the elevator doors closed, the victim asked defendant what he wanted
and he responded, "you," which made her "really scared." When the elevator
reached the floor of her apartment, she exited, and defendant followed her. The
victim attempted to call 9-1-1 using her cell phone. Defendant grabbed her
phone from her, grabbed her purse and other belongings, and then "grabbed
[her]." After he had all of her belongings, defendant "had [her] up against the
wall face[-]to[-]face and just had a hold on [her] and would[ not] let [her] go."
Defendant squeezed her arm hard causing her pain. The victim screamed for
help. He continued to hold her in place and squeeze her arm for what the victim
believed was several minutes.
The victim's roommates heard her screaming and opened the apartment
door. Defendant released the victim when the door opened. Defendant took the
victim's cell phone, purse, and wallet I.D. holder containing her license, credit
cards, and cash. Based on a description provided by the victim, police located
defendant a few blocks from the building still in possession of most of the items
taken from the victim. Defendant was arrested and later identified by the victim.
She sought medical attention for an injury to her finger.
The court charged the jury using the Model Criminal Jury Charge
(Criminal), "Robbery (N.J.S.A. 2C:15-1)" as follows:
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[T]he defendant is charged with the crime of
robbery which reads in pertinent part as follows[:]
On . . . the [fifteenth] day of October
2018, . . . defendant . . . , in the course of committing a
theft, did knowingly inflict bodily injury upon or use[]
force upon [the victim].
Part of the statute on which this indictment is
based reads as follows: A person is guilty of robbery
if[,] in the course of committing a theft[,] he knowingly
inflicts bodily injury or uses force upon another. In
order for you to find the defendant guilty of robbery,
the State is required to prove each of the following
elements beyond a reasonable doubt:
1. That the defendant was in the course of
committing a theft[,]
2. That while in the course of committing that
theft the defendant knowingly inflicted bodily injury or
used force upon another.
As I have said, the State must prove[,] beyond a
reasonable doubt[,] that the defendant was in the course
of committing a theft. In this connection, you are
advised that an act is considered to be in the course of
committing a theft if it occurs in an attempt to commit
the theft[,] during the commission of the theft itself[,]
or in immediate flight after the attempt or commission.
....
In addition to proving beyond a reasonable doubt
that the defendant was in the course of committing a
theft, the State must also prove[,] beyond a reasonable
doubt[,] that while in the course of committing that
theft, the defendant knowingly inflicted bodily injury
or used force upon another.
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....
Force means an amount of physical power or
strength used against the victim and not simply against
the victim's property. The force need not entail pain or
bodily harm and need not leave any mark.
Nevertheless, the force must be greater than that
necessary to merely snatch the object from the victim's
grasp or the victim's person, and the force must be
directed against the victim, not merely the victim's
property.
To find the defendant guilty of robbery[,] . . . the
intent to commit a theft must proceed or be coterminous
with the use of force. In other words, the defendant
must have formed the intent to commit a theft before or
during his use of force. If you find the defendant
formed the intent to commit a theft after his use of
force, then he cannot be found guilty of robbery.
Defendant was convicted of second-degree robbery and sentenced to a
custodial term of eight years subject to the No Early Release Act and three years
of parole supervision.1 This appeal followed.
Defendant raises the following issue on appeal:
THE TRIAL COURT REVERSIBLY ERRED IN
FAILING TO INSTRUCT THE JURY THAT ANY
USE OF FORCE COMMITTED DURING A
ROBBERY MUST HAVE ACTUALLY BEEN IN
FURTHERANCE OF THE ROBBERY IN ORDER
1
Defendant was also sentenced on convictions for other charges relating to this
incident as well as two unrelated indictments. Defendant did not appeal those
convictions and sentences.
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FOR IT TO CONSTITUTE AN ELEMENT OF THE
OFFENSE.
"Proper jury instructions are essential to ensuring a fair trial." State v.
Robinson, 165 N.J. 32, 40 (2000) (citing State v. Green, 86 N.J. 281, 287
(1981)). However, when a defendant fails to object to an error regarding a jury
charge, we review for plain error. State v. Funderburg, 225 N.J. 66, 79 (2016).
"Under that standard, we disregard any alleged error 'unless it is of such a nature
as to have been clearly capable of producing an unjust result.'" Ibid. (quoting
R. 2:10-2).
"[A] jury charge is presumed to be proper when it tracks the model jury
charge because the process to adopt model jury charges is 'comprehensive and
thorough.'" State v. Cotto, 471 N.J. Super. 489, 543 (App. Div. 2022) (quoting
State v. R.B., 183 N.J. 308, 325 (2005)). However, the trial court has an
"'independent duty . . . to ensure that the jurors receive accurate instructions on
the law as it pertains to the facts and issues of each case, irrespective of the
particular language suggested by either party.'" State v. Baum, 224 N.J. 147,
159 (2016) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)). "[T]he failure
to charge the jury on an element of an offense is presumed to be prejudicial
error, even in the absence of a request by defense counsel." State v. Federico,
103 N.J. 169, 176 (1986) (citations omitted).
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Defendant's argument that the jury charge used in this case was
inconsistent with the Supreme Court's decision in Lopez is not persuasive. In
Lopez, the Court rejected the concept of "afterthought robbery" in which "a
violent fracas occurs for reasons other than theft, and the perpetrator later
happens to take property from the victim." 187 N.J. at 101. The court held "our
[robbery] statute requires that the threats or violence be carried out in
furtherance of the intention to commit a theft. Indeed, the sequence of events is
critical; the intention to steal must precede or be coterminous with the use of
force." Ibid.Defendant argues, incorrectly, that Lopez held "the use of force must have
been in furtherance of the taking." In fact, the Court held the force must be
"carried out in furtherance of the intention to commit a theft." Ibid. (emphasis
added). In other words, as the Court specifically held, the intention to steal must
precede the use of force. In fact, the Court also held that "a person who has
stolen goods and thereafter uses violence in flight is guilty of robbery" because
"the intention to commit the theft generated the violence." Ibid.The jury charge in this case clearly instructed the jury, in accordance with
Lopez, that "the intent to commit a theft must precede or be coterminous with
the use of force" and "defendant must have formed the intent to commit a theft
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before or during his use of force." The charge instructed that the State was
required to prove beyond a reasonable doubt that defendant "was in the course
of committing a theft" and "while in the course of committing that theft[,]
defendant knowingly inflicted bodily injury or used force upon another." The
charge defined "in the course of committing a theft" to mean "in an attempt to
commit the theft[,] during the commission of the theft itself[,] or in immediate
flight after the attempt or commission."
We are satisfied the jury charge in this case clearly set forth the elements
of the offense of second-degree robbery, N.J.S.A. 2C:15-1(a)(1), and was
consistent with Supreme Court's decision in Lopez. We can discern no basis to
find error, much less plain error.
Affirmed.
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