STATE OF NEW JERSEY VS. JOHNSLER ERTILIENÂ (14-08-1962, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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