STATE OF NEW JERSEY VS. ANDREA K. DUNBRACK STATE OF NEW JERSEY VS. GABRIEL RODRIGUEZ (15-01-0058, MERCER COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0201-17T4
A-0518-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDREA K. DUNBRACK,
Defendant-Appellant.
______________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GABRIEL RODRIGUEZ,
Defendant-Appellant.
_______________________________
Argued April 10, 2019 — Decided May 1, 2019
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 15-01-0058.
Robin Kay Lord argued the cause for appellant Andrea
K. Dunbrack.
Peter T. Blum, Assistant Deputy Public Defender,
argued the cause for appellant Gabriel Rodriguez
(Joseph E. Krakora, Public Defender, attorney; Peter T.
Blum, of counsel and on the brief).
Narline Casimir, Assistant Prosecutor, argued the cause
for respondent in A-0201-17 (Angelo J. Onofri, Mercer
County Prosecutor, attorney; Randolph E. Mershon, III,
Assistant Prosecutor, of counsel and on the brief).
Narline Casimir, Assistant Prosecutor, argued the cause
for respondent in A-0518-17 (Angelo J. Onofri, Mercer
County Prosecutor, attorney; Narline Casimir, of
counsel and on the brief).
PER CURIAM
In these back-to-back appeals, defendant Andrea Dunbrack challenges her
December 15, 2016 judgment of conviction on one count of first-degree robbery,
N.J.S.A. 2C:15-1(a)(1); two counts of second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b); and one count of second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). She also appeals from
her sentence.
Defendant Gabriel Rodriguez appeals from his December 15, 2016
judgment of conviction on one count of first-degree robbery, N.J.S.A. 2C:15-
1(a)(1); one count of second-degree unlawful possession of a weapon, N.J.S.A.
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2C:39-5(b); one count of second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a); and one count of fourth-degree resisting arrest,
N.J.S.A. 2C:29-2(a)(2). He also challenges his sentence. We reverse and
remand for a new trial for both defendants.
We take the following facts from the record. During the evening of June
15, 2014, the victim consumed several beers at multiple bars in Trenton. Around
midnight, Rodriguez approached the victim and offered him a cheap taxi ride.
At approximately 1:20 a.m., Rodriguez arrived in the front-passenger's
seat of a gray-colored vehicle driven by Dunbrack. The victim sat in the
backseat of the vehicle and told Dunbrack to take him to his home in
Lawrenceville. After driving for a few minutes, the victim noticed the vehicle
was in Hamilton Township. When the victim asked Rodriguez and Dunbrack
where they were taking him, Dunbrack suddenly pulled the car over. Rodriguez
then opened the passenger door, pointed a gun at the victim, and stated "[g]ive
me your money, otherwise I'll kill you." The victim gave Rodriguez his wallet
and cellphone. Rodriguez then punched the victim in the face and instructed
him to strip naked. When the victim failed to listen, Rodriguez punched and
pistol-whipped him.
A-0201-17T4
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At approximately 1:45 a.m., Hamilton Township Police Officers Robert
Whartenby and David Walls were returning from a dispatch and noticed a
vehicle with its headlights on in the parking lot next to an abandoned building.
As officers approached, they noticed the driver's side door was open and the
vehicle was empty. When they got closer, the officers saw Rodriguez standing
with his back towards the vehicle and Dunbrack standing by the passenger's side
taillights. Walls exited the patrol vehicle, walked towards Dunbrack, and
noticed a small fire and a man, later identified as the victim, lying on the ground
naked in a fetal position. Whartenby noted the victim had a visibly high heart
rate, and his face and head were covered in blood.
Rodriguez fled on foot, but was apprehended a few hours later. He had
money and four cellular telephones in his possession, including the victim's
telephone.
Meanwhile, Walls extinguished the fire and tended to the victim. Officers
confirmed the vehicle was registered to Dunbrack. Whartenby observed a
woman's purse and a revolver on the driver's seat of the vehicle. He placed
Dunbrack into custody and sat her in the backseat of the patrol vehicle. He
observed Dunbrack moving around and saw she had moved her handcuffed
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hands from behind her back to the front of her body. Dunbrack was searched at
the scene, but nothing was recovered.
Officers recovered the victim's blue t-shirt, underwear, and socks located
near the vehicle where the victim was laying. Inside Dunbrack's vehicle, they
recovered the victim's pants, passport, wallet, and money. The victim was
transported to the hospital where he received multiple staples on his head and
sutures above his left eye.
Dunbrack was searched again at police headquarters and a semi-automatic
handgun was discovered hidden in her bra. Dunbrack's feet and Rodriguez's
hands were also bloody. Police took samples of the blood on Dunbrack and
Rodriguez, the revolver recovered from Dunbrack's vehicle, and the gun from
her person. The blood located on the revolver and on Dunbrack's feet matched
the victim's DNA. The test results for the blood on Rodriguez's hands were
inconclusive.
Dunbrack and Rodriguez's cases were tried together before a jury. Both
stipulated neither had ever applied for or were issued a permit to carry a
handgun.
Dunbrack testified she had no direct involvement in the crime. She
claimed Rodriguez was driving her from her job as an exotic dancer in Atlantic
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City to their hotel in northern New Jersey because her license was suspended.
She asserted an argument occurred because Rodriguez wanted to go to a bar and
she wanted to go home. Regardless, Rodriguez stopped at a bar in Trenton. She
claimed Rodriguez entered the bar, but she stayed in the vehicle and drove away
for a few minutes before returning to the bar. She then saw Rodriguez walk out
of the bar with the victim.
Dunbrack testified Rodriguez drove the vehicle while she and the victim
sat in the backseat. She claimed the victim began speaking to her in Spanish
and put his hand on her leg, which she removed and said "no." She claimed the
victim simultaneously began to remove his pants, expose himself, and climb on
top of her. Rodriguez then reached into the back seat and hit the victim in the
head with something, which caused the victim to start bleeding in the car.
Dunbrack claimed she maced and kicked the victim. Rodriguez then pulled
over, dragged the victim out of the car, threw Dunbrack's purse into the front
seat, and began fighting the victim. Dunbrack testified Rodriguez instructed her
to hold the gun, which she hid in her bra.
Police recovered no evidence of blood from inside the vehicle and
Whartenby testified he did not smell mace in the car or on the victim. Moreover,
Dunbrack was unable to provide an explanation why the victim was naked, or
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why his pants, wallet, and passport were in the front seat of the car. Dunbrack
also conceded she did not mention the alleged sexual assault when police
arrived.
During the charge conference, Dunbrack's counsel sought a charge for a
justification defense based on "use of force in defense of one's self and defense
of others." Importantly, her counsel also mentioned a lesser-included offense
charge stating:
And I'm just wondering . . . if justification would
be a charge that we should have the jury consider. And
if we go there, could there also be the various levels of
assault rather than an actual robbery. If in fact the jury
didn't believe there was a robbery, . . . it could be an
assault, second or third degree, even a simple assault if
they thought that. And . . . possibly a theft from a
person or a theft in general if in fact there was some
type of justification for the altercation and the assault.
But then . . . Rodriguez is leaving the scene with
the phone in his pocket. Was it an actual robbery[?]
[I]s it a theft[?] So I just wanted to throw that out there
based on . . . Dunbrack's testimony.
Dunbrack's counsel also mentioned Rodriguez could be "justified in pulling [the
victim] out of the car" because of the alleged sexual assault.
The discussion then turned to the State's objection as to whether it had
received adequate notice that the defense would be seeking the charges, which
the State ultimately conceded. The trial judge then addressed and determined
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whether the justification instruction was appropriate to charge. The judge and
counsel agreed to modify the instruction regarding deadly-force and the duty to
retreat because it was not applicable. No further discussion regarding lesser-
included offenses occurred and the judge did not charge the jury accordingly.
Rodriguez and Dunbrack were convicted of all charges, with the exception of
one of the possession of a weapon for an unlawful purpose charges against
Dunbrack, which the judge dismissed.
Approximately three months later, Dunbrack filed a motion for a judgment
of acquittal and a motion for a new trial. She attached a handwritten letter
written by Rodriguez purporting to exonerate her. The court denied both
motions and sentenced both defendants. These appeals followed.
Dunbrack raises the following points on appeal:
POINT ONE – THE TRIAL COURT ERRED IN
RULING THAT DEFENDANT'S MOTION FOR A
NEW TRIAL BASED ON NEWLY DISCOVERED
EVIDENCE WAS TIME BARRED BECAUSE A
MOTION FOR A NEW TRIAL BASED ON NEWLY
DISCOVERED EVIDENCE MAY BE MADE AT
ANY TIME.
POINT TWO – THE TRIAL COURT'S DECISION
DENYING DEFENDANT'S MOTION FOR A NEW
TRIAL BASED ON NEWLY DISCOVERED
EVIDENCE MUST BE REVERSED BECAUSE THE
CO-DEFENDANT'S LETTER EXONERATING
DEFENDANT IS MATERIAL, NEWLY
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DISCOVERED, AND WOULD PROBABLY
CHANGE THE JURY'S VERDICT.
POINT THREE – A QUALITATIVE WEIGHING OF
THE AGGRAVATING AND MITIGATING
FACTORS DOES NOT SUPPORT THE IMPOSITION
OF AN AGGREGATE SENTENCE OF [THIRTEEN]
YEARS WITH AN [EIGHTY-FIVE PERCENT]
PERIOD OF PAROLE INELIGIBILITY.
In her reply-brief Dunbrack argues,
POINT ONE – THE TRIAL COURT'S DECISION
DENYING DEFENDANT'S MOTION FOR A NEW
TRIAL BASED ON NEWLY DISOVERED [SIC]
EVIDENCE MUST BE REVERSED.
Rodriguez raises the following points on his appeal:
POINT I – A NEW TRIAL SHOULD BE OCCUR
[SIC] BECAUSE THE COURT MISTAKENLY
NEGLECTED TO CHARGE THEFT AS A LESSER-
INCLUDED ALTERNATIVE TO ROBBERY WHEN
THE TESTIMONY SHOWED THAT THE THEFT
MIGHT HAVE BEEN AN AFTERTHOUGHT AFTER
A FIGHT WAS OVER. U.S. CONST. AMEND. XIV;
N.J. CONST. ART. I, PARA. 1.
POINT II – A RESENTENCING SHOULD OCCUR
BECAUSE THE COURT DID NOT EXPLAIN WHY
IT FOUND AGGRAVATING FACTORS THREE,
SIX, AND NINE, AND THE APPARENT REASON
WAS A SERIES OF PRIOR ARRESTS FOR WHICH
NO DISPOSITION WAS KNOWN. U.S. CONST.
AMEND. XIV; N.J. CONST. ART. I, PARA. 1.
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We address only the claim that the trial judge failed to sua sponte charge
the jury on the lesser-included offense of theft and only charged robbery.
Because we find this was reversible error requiring a new trial, we do not reach
the other arguments raised by the parties.
When a defendant does not object to a jury instruction at trial, we review
the charge for plain error. R. 1:7-2; R. 2:10-2; State v. McKinney, 223 N.J. 475,
494 (2015). Plain error is a "[l]egal impropriety in the charge prejudicially
affecting the substantial rights of the defendant sufficiently grievous to justify
notice by the reviewing court and to convince the court that of itself the error
possessed a clear capacity to bring about an unjust result." State v. Adams, 194
N.J. 186, 207 (2008) (alteration in original) (quoting State v. Jordan, 147 N.J.
409, 422 (1997)).
As a general proposition, "[n]o defendant should be convicted of a greater
crime or acquitted merely because the jury was precluded from considering a
lesser offense." State v. O'Carroll, 385 N.J. Super. 211, 223-24 (App. Div. 2006)
(quoting State v. Muhammad, 182 N.J. 551, 577 (2005)). "A trial judge . . . 'has
an independent obligation' to instruct the jury on lesser-included charges when
the evidence 'clearly indicate[s] that a jury could convict on the lesser while
acquitting on the greater offense.'" Id. at 224 (alteration in original) (quoting
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State v. Jenkins, 178 N.J. 347, 361 (2004)). "If neither party requests a charge
on a lesser-included offense, the court must sua sponte provide an instruction
'when the facts adduced at trial clearly indicate that a jury could convict on the
lesser while acquitting on the greater offense.'" State v. Maloney, 216 N.J. 91,
107 (2013) (quoting State v. Thomas, 187 N.J. 119, 132 (2006)).
"The Code . . . incorporates theft as an element of robbery." State v.
Mejia, 141 N.J. 475, 495 (1995). "All robberies are thefts; robbery is simply a
greater offense that always includes theft." State v. Sein, 124 N.J. 209, 229
(1991) (citing N.J.S.A. 2C:15-1). "Although robbery may consist of an assault
on one victim following a theft from another . . . , theft or attempted theft is
always a necessary element of any robbery[.]" Mejia, 141 N.J. at 495 (citations
omitted).
As we noted, Dunbrack's counsel did raise the issue of a lesser-included
charge. However, the discussion during the charge conference appears to have
focused on other aspects of the jury instructions.
The trial judge's jury instruction on robbery was as follows:
In order for you to find . . . defendant or
defendants guilty of robbery, the State is required to
prove each of the following elements beyond a
reasonable doubt:
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1. That . . . defendant or defendants were in the
course of committing a theft;
2. While in the course of committing that theft,
. . . defendant or defendants knowingly inflicted bodily
injury or used force upon another.
As I have said, the State must prove beyond a
reasonable doubt that . . . defendant or defendants were
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 the immediate flight after the attempt or the
commission.
Theft is defined as the unlawful taking or
exercise of unlawful control over property of another
with the purpose to deprive him thereof.
Although the charge defined theft, the parties do not dispute that the remainder
of the judge's instructions, which we need not repeat here, informed the jury it
could only determine whether defendants were guilty of robbery.
The request by counsel for the lesser-included charge during the charge
conference could have been clearer, as opposed to merely "throw[ing the charge]
out there" for the judge's consideration. Notwithstanding, the trial judge had the
duty, independent of counsel's request, to sua sponte charge the jury accordingly
where the facts clearly indicated it could acquit defendants of the robbery, but
find theft. The facts demonstrated a jury could find defendants had acted
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individually or in concert to deprive the victim of his property. For these
reasons, the failure to give the lesser-included offense charge was plain error
clearly prejudicial to defendants because it presented the jury with an all-or-
nothing decision to convict or acquit only on the robbery.
Reversed and remanded for a new trial as to both defendants. We do not
retain jurisdiction.
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