Objecting, Even If Unsuccessful at The Time, Preserves the Issue for Appeal
Appellate Docket No.: A-4754-18
Decided July 9, 2021
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
In a recent unpublished opinion, the Appellate Division of New Jersey reviewed whether jury instructions for the defense of duress should have been tailored to the facts of defendant’s case, rather than just a reading of the model jury charge.
In State v. Scott, on June 12, 2017, the attendant at a Shell gas station in Bloomfield was robbed. There is no dispute that defendant and co-defendant William Jones committed the robbery. The dispute is whether defendant participated in the robbery and the ensuing eluding under duress.
The facts at trial establish that during the evening of June 12, 2017, defendant drove a black Acura into a Shell gas station. Jones was also in the car, sitting in the front passenger seat. The attendant testified that after he pumped $3.00 worth of gas into the car, the driver grabbed his shirt and demanded money. The attendant saw that the passenger was pointing a gun at him. Accordingly, the attendant reached into his pocket and gave the driver everything he had, which included two access cards and over $300 in cash. The driver then reached into the attendant’s pocket, removed his cell phone, but returned it to the attendant. According to the attendant, the driver told him to turn around and walk away and the car left the station. Thereafter, the attendant called 911 and the police responded within minutes.
The car sped off, and a high-speed chase ensued. Eventually, the Acura turned off the Parkway and collided with a white Honda. The sheriff’s officer arrested the driver, who was later identified as defendant. The police officer arrested the passenger, who was later identified as Jones.
A detective with the Prosecutor’s Office obtained a warrant to search the Acura. A black airsoft handgun was found under a seat cushion and two access cards were found on the floor in front of the passenger seat. A search incident to the arrest of Jones revealed he had $393.05 in cash in his pocket
Before trial, defendant gave notice that he would rely on the defense of duress. Thereafter, Jones entered into a plea agreement under which he pled guilty to second-degree robbery and agreed to testify against defendant.
Defendant acknowledged he and Jones were together on June 12, 2017. He explained that after they visited his mother, they stopped at a Shell station to get gas. According to defendant, Jones pulled out a gun, placed it toward defendant’s back, and told defendant to grab the money from the attendant. Defendant claimed he felt afraid and that the attendant took money from his pockets and put it on the vehicle’s dashboard. Jones then instructed defendant to check the attendant’s pockets and after defendant patted the attendant down, defendant told the attendant to walk away.
The judge provided the model jury charge of the defense of duress and defense counsel did not object at the time.
A jury convicted defendant of second-degree robbery, N.J.S.A. 2C:15-1(a)(1); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:15-1(a)(1); fourth-degree possession of an imitation weapon for an unlawful purpose, N.J.S.A. 2C:39-4(e); second-degree eluding arrest, N.J.S.A. 2C:29-2(b); and second-degree aggravated assault while eluding, N.J.S.A. 2C:12-1(b)(6). Defendant was sentenced to an aggregate prison term of twentysix years with periods of parole ineligibility and parole supervision as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appealed, arguing the duress jury charge should have been tailored to the facts of the case. The Appellate Division affirmed, disagreeing with defendant, and ruling that because defense counsel did not object, the court was reviewing the matter under the plain error standard. Under that standard, it was clear the jury understood the charge and heard defendant’s testimony with regard to duress. Only in cases of possible confusion must a judge tailor the facts to the jury charge.
This case is important to understand the importance of objecting or failing to object during trial. Objecting, even if unsuccessful at the time, preserves the issue for appeal. Otherwise, the Appellate Division reviews the issue on appeal under the plain error standard – a standard much higher than if defense counsel objects.
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