State v. Brinson, DOCKET NO. A-2124-17T4

• Decision Date: 31 January 2019
• Docket Number: DOCKET NO. A-2124-17T4
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. IVERY BRINSON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. IVERY BRINSON, Defendant-Appellant.

DOCKET NO. A-2124-17T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted January 8, 2019

January 31, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Hoffman and Suter.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-05-1420.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Deputy Public Defender, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Adam D. Klein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A jury acquitted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), but convicted him of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2; first-degree carjacking, N.J.S.A. 2C:15-2; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon with an unlawful purpose. After merging the aggravated manslaughter and robbery convictions with the felony murder conviction, the trial court sentenced defendant to life in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The trial court also sentenced defendant to a thirty-year term of imprisonment, subject to NERA, on the carjacking conviction, to run consecutively to the felony murder sentence.

Defendant appeals from the convictions and sentence, raising the following issues:

POINT I

THE FELONY MURDER, ROBBERY, AND CONSPIRACY TO COMMIT ROBBERY CONVICTIONS MUST BE REVERSED BECAUSE THE JURY WAS PERMITTED TO CONVICT

BASED ON AN UNDERLYING ATTEMPTED THEFT, DESPITE HAVING RECEIVED NO GUIDANCE ON THE LAW OF ATTEMPT. (Not Raised Below)

POINT II

THE AGGRAVATED MANSLAUGHTER CONVICTION MUST BE REVERSED BECAUSE THE JURY EXPRESSLY FOUND THAT DEFENDANT DID NOT COMMIT RECKLESS MANSLAUGHTER, WHICH IS AN INDISPENSABLE COMPONENT OF AGGRAVATED MANSLAUGHTER. (Not Raised Below)

POINT III

THE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE CONVICTION MUST BE REVERSED BECAUSE THE CIRCULAR DEFINITION WITHIN THE JURY CHARGE ON THAT OFFENSE LEFT THE JURY WITH INSUFFICIENT GUIDANCE TO RENDER A JUST VERDICT. (Not Raised Below)

POINT IV

IF THE FELONY MURDER CONVICTION IS NOT REVERSED, THE MATTER MUST BE REMANDED FOR A RESENTENCING IN WHICH DEFENDANT IS SENTENCED TO CONCURRENT SENTENCES FOR THE FELONY MURDER AND CARJACKING CONVICTIONS. (Not Raised Below)

Finding no merit in defendant's arguments, we affirm his convictions and sentence.

I.

We begin with a summary the most pertinent trial evidence, considering the issues raised on appeal. On June 29, 2013, surveillance video recorded at the Irvington Mini Mart depicted four men entering the store. The gunman had dreadlocks and was wearing khaki shorts and a white tee shirt. The surveillance video depicts Narendrak Patel, the store owner and victim, walking backwards and behind the counter as the individuals walked toward him. The gunman then walked out the door, with the others still standing inside. Moments later, the gunman walked back into the door, produced a handgun, and pointed it at Patel. The gunman stated "you know what it is," apparently commencing a robbery. At this point, Patel walked further behind the counter, bent over, and produced a long stick. The gunman then shot Patel three times, with one bullet causing a fatal wound to Patel's lung.

With Patel on the ground, the gunman and an accomplice went behind the counter. The accomplice pulled items from a New Jersey lottery register, and other items next to the register, and put them into his pockets. The gunman picked items up from the floor, and placed them into his right pocket. The gunman then hopped up and briefly sat on the counter, grabbed items with his right hand, and placed them into his right pocket. Meanwhile, anotheraccomplice slammed a register to the floor, and when it broke open, the three accomplices reached down and put money into their pockets. The men then left the store.

Minutes later, several blocks from the store, four men approached J.A. as he exited his car. One of the men held a gun to J.A.'s face and demanded the car keys. J.A. complied. Surveillance video showed the four men abandoning the car on a street in Newark, a few miles north of the mini-mart.

Sergeant Carlos Olmo of the Essex County Prosecutor's Office Homicide Task Force testified that he extracted still photographs from the video, and released them to the public for help in identifying the suspects. L.C. saw the photographs on television, and the next morning called the police, claiming that she knew the identities of the robbers. At the station, she identified the gunman as her cousin, Ivery Brinson, and the accomplices as her cousins Deion and Shakil Brinson, and her brother, Carnel Colbert. L.C. also identified defendant's voice from the audio portion of the surveillance footage. During her testimony at trial, L.C. identified defendant for the jury, and watched the video in front of the jury, using a laser pointer to identify each of the suspects. L.C. also watched surveillance video from the Newark Housing Authority, where defendants exited and abandoned the carjackedvideo - she testified, while watching the video, that it was defendant and co-defendants exiting the vehicle.

Along with L.C., co-defendant Carnel's other sister, S.C., also testified on behalf of the State. She saw the footage of the robbery on the internet, and made the same identifications as L.C. at the Essex County Prosecutor's Office. Her testimony at trial provided the same identifications that L.C. provided in her testimony.

J.A., the carjacking victim, also testified on behalf of the State. J.A. made an in-court identification of defendant as the man who held the gun to his head during the carjacking. Previously, J.A. picked defendant out of a double-blind photo array - this was videotaped and shown to the jury.

II.

In each of defendant's points on appeal, he concedes that none of the arguments were raised before the trial judge. Arguments not raised in the trial court are reviewed for plain error. R. 2:10-2. Such an error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Chavies, 345 N.J. Super. 254, 265 (App. Div. 2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). "Appellate courts ordinarily decline to consider issues not presented to the trial court unless they 'go to the jurisdiction of the trial court or concern matters of great publicinterest.'" Kvaerner Process, Inc. v. Barham-McBride Joint Venture, 368 N.J. Super. 190, 196 (App. Div. 2004) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); see also U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 483 (2012) (declining to consider argument raised for the first time on appeal).

III.

We first address defendant's argument that the jury should have been instructed on the elements of attempted robbery, claiming, "[A]lthough the court instructed the jury that attempted theft could serve as the basis for a robbery conviction, it did not read the model charge of attempt, as the model charge on robbery requires." Defendant claims this alleged error requires reversal of the felony murder, robbery, and conspiracy to commit robbery convictions. However, quoting State v. Dehart, 430 N.J. Super. 108, 118 (App. Div. 2013), defendant concedes that the model charge defining attempt is required "[i]f an attempt is involved."

Defendant premises this argument on the fact there was no evidence admitted into trial of actual items taken from the store during the incident. In Dehart, the defendant approached the register holding a candy bar. Id. at 111. He then produced a metal stick, threatened the owner, and told her to open the register, but she instead ran out of the store, and the defendant followed. Ibid. This court held that it wasplain error by the trial court in failing to instruct the jury on attempt, where "[t]here was no competent evidence [the] defendant took anything," id. at 120, as no money was taken, and there was no proof that the defendant took the candy bar from the store.

Here, however, there were multiple instances in the surveillance video where all four suspects clearly placed store items into their pockets after Patel was shot. Defendant and a co-defendant first went behind the counter and put various items into their pockets. When defendant hopped over the counter, he stopped and placed items into his pockets. Finally, a co-defendant took a register, broke it open, and he and the other two co-defendants began taking items from the broken register, and placed the items into their pockets. We disagree with defendant's assertion that "there was essentially no evidence of an actual theft," as the jury saw these surveillance tapes at trial. There is no reasonable doubt that a different result would have occurred if the jury received an attempt instruction as to the robbery charge. Defendant's first point clearly lacks merit.

IV.

Next, we address defendant's argument the jury produced an inconsistent verdict sheet, as it marked defendant guilty of aggravated manslaughter and not guilty of reckless manslaughter, which defendant contends is an indispensablecomponent of aggravated manslaughter. Once the jury marked defendant guilty of aggravated manslaughter, the directions on the verdict sheet instructed them to skip the next question about reckless...