State v. Lemar
| Decision Date | 09 April 2019 |
| Docket Number | DOCKET NO. A-3167-16T2 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. RALPH M. LEMAR, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, Suter and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 15-08-2401.
Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Jay L. Wilensky, of counsel and on the brief).
Kevin J. Hein, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Linda A. Shashoua, of counsel and on the brief).
Defendant Ralph M. Lemar appeals his conviction and sentence for armed robbery and related offenses. Defendant makes several claims of error that were not raised at trial. Defendant also contends his conviction is against the weight of the evidence even though he did not move for a new trial. Finally, defendant argues his sentence is excessive. We affirm.
Defendant was tried with co-defendants Brian K. Williams, Marvela S. Brown-Bailey, and Innis J. Henderson. We summarize the evidence adduced at the joint trial.
On the afternoon of March 25, 2015, Brown-Bailey, a licensed bail bondsman, traveled to the residence of Katie Wilson. Brown-Bailey enlisted Wilson's help in apprehending Eric Webb, who was wanted for failing to appear at a court hearing. Wilson was a former associate of Webb's. Wilson admitted she and Webb participated in a car rental scheme whereby Wilson rented cars in her name for Webb to drive because Webb did not have a license; she also admitted to purchasing heroin from Webb.
Brown-Bailey asked Wilson if she would be willing to set up a meeting with Webb so Brown-Bailey could apprehend him. Wilson agreed. In exchange,Brown-Bailey gave her $100, and promised her assistance with her "municipal problems," which included a pending charge related to the car rental scheme.
Wilson contacted Webb and arranged for him to come to her residence that night. When Webb pulled up, Wilson sent Brown-Bailey a text message, and, within moments, Wilson testified she was "pretty sure" Brown-Bailey's red Dodge Avenger was in the back and a white Chevrolet Impala associated with defendant was in the front. Wilson testified she observed four people exit the Dodge and the Impala. By that time, it was dark outside so Wilson could only positively identify Brown-Bailey and Henderson, but she was certain the other two were black men. Wilson testified they all yelled at Webb to get out of the car. In response, F.E., Webb's seventeen-year-old passenger, emerged from the car, but Webb did not. Instead, Webb drove his car back and forth, hitting the vehicles blocking him so he could get away.
Webb then fled in his silver Chevrolet Malibu. Defendant, Williams, and co-defendant Jovani A. Diaz pursued Webb as he fled.1 Diaz testified she wasdriving the Impala, which belonged to the mother of one of defendant's children, during the high-speed pursuit, which eventually terminated in a wooded area behind a motel in Atco. Diaz also testified Webb was unable to exit his car via the driver's side door because she stopped the Impala alongside the Malibu. Diaz admitted Webb Webb testified it was at that point defendant opened the passenger's side door, jumped in, and hit him in the head with a tire iron. Diaz's testimony corroborated Webb's - she stated she witnessed defendant hit Webb in the face with the tire iron. Webb stated he received seven stitches in his forehead as a result of defendant striking him with the tire iron.
Webb testified another male "jumped on" him from the back and began punching him in the ribs. Webb could not positively identify Williams as the other male, however, Diaz testified she witnessed Williams "punching on" Webb. Diaz also testified defendant and Williams were both "beating on" Webb. Webb also testified a woman "attacked [him] from the driver's side," and restrained his legs. Although Webb could not identify the woman, Diaz admitted to holding Webb's legs and to "hitting" him."
Webb testified defendant took his sunglasses and necklace, and stated, Webb also stated the woman removed money from his pockets after being ordered to do so by defendant. Diaz admitted to taking Webb's cell phone and cash. Webb's cell phone was recovered from Diaz's belongings after her arrest.
On the date he testified, Webb was serving two prison terms, one for fourth-degree aggravated assault, and the other for charges stemming from the heroin he was in possession of when the police searched him on the night of the incident. Webb also testified to his prior convictions for burglary, resisting arrest, and drug offenses; admitted he knew he had an arrest warrant out for him for violating his probation, and for failing to appear for a court date while out on bail on firearms charges; and admitted he had not made the required payments to the bail bondsman.
Officers Michael Hackman and Timothy Arthur Lyons of the Waterford Township Police Department both testified they observed blood in the front passenger side area of Webb's car and a tire iron on the front passenger's seat of the Impala. Officer Lyons also testified only Webb appeared injured. The scientific testimony elicited at trial established the clothing worn by defendant and Williams had Webb's blood on it.
Brown-Bailey told police defendant helped her catch bail jumpers "every now and then." She testified defendant occasionally accompanied her when she went in search of bail jumpers to ensure her safety. According to Brown-Bailey, it was defendant who enlisted the help of Williams, Henderson, and Diaz, who was Henderson's then girlfriend.
A Grand Jury returned an indictment charging defendant, Williams, and Diaz with first-degree robbery, N.J.S.A. 2C:15-1(a)(1) and (2) (count one); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a)(1) and (2) (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count four); third-degree possession of a weapon, specifically a tire iron, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and fourth-degree unlawful possession of a weapon (the tire iron), N.J.S.A. 2C:39-5(d) (count six). Henderson and Brown-Bailey were charged under the same indictment with kidnapping, robbery, and other related offenses for the events that transpired with F.E. after he exited Webb's vehicle.
Tried to a jury, defendant was convicted of counts one, two, four, five, and six as charged. On count three, the jury convicted defendant of the lesser-included offense of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7),while Williams was convicted of the lesser-included charge of simple assault, N.J.S.A. 2C:12-1(a)(1). Henderson and Brown-Bailey were convicted of the lesser-included charges of false imprisonment, conspiracy to commit false imprisonment, and theft; Henderson was also convicted of related weapons offenses.
After merging counts two, three (as amended), four, and five into count one for sentencing purposes, defendant was sentenced to a seventeen-year prison term, subject to an eighty-five percent period of parole ineligibility and five years of parole supervision, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count six, defendant was sentenced to a concurrent eighteen-month prison term. This appeal followed.
Defendant raises the following arguments:
For the first time on appeal, defendant argues the trial court's accomplice liability charge misstated the basis for conviction. He asserts the error warrants reversal of his convictions for robbery and aggravated assault. We are unpersuaded by this argument because the jury's verdict demonstrates there was no prejudice.
"Whether a defendant is being prosecuted as a principal or an accomplice, 'the State must prove that he possessed the mental state necessary to commit the offense.'" State v. Maloney, 216 N.J. 91, 105 (2013) (quoting State v. Whitaker, 200 N.J. 444, 458 (2009)). "By definition an accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice." State v. Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993) (qu...
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