STATE OF NEW JERSEY VS. CLINTON SCOTT (17-08-2189, ESSEX COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4757-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CLINTON SCOTT,
a/k/a ABDUL MALIK
MUMALLIK, MALIK SCOTT
TROY DEBERRY, and
COUPE,

     Defendant-Appellant.
________________________

                   Argued June 8, 2021 – Decided July 9, 2021

                   Before Judges Fisher, Gilson, and Gummer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 17-08-2189.

                   Andrew M. Kuntz, Designated Counsel, argued the
                   cause for appellant (Joseph E. Krakora, Public
                   Defender, attorney; Andrew M. Kuntz, on the briefs).

                   Matthew E. Hanley, Special Deputy Attorney
                   General/Acting Assistant Prosecutor, argued the cause
                   for respondent (Theodore N. Stephens, II, Acting Essex
             County Prosecutor, attorney; Matthew E. Hanley, of
             counsel and on the brief).

PER CURIAM

       An attendant at a gas station was robbed at gunpoint. A jury convicted

defendant Clinton Scott 1 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 twenty-

six 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 appeals, arguing that the trial court committed plain error in

not molding the jury instructions on his defense of duress and in imposing an

excessive sentence given the disparity between defendant's sentence and the

sentence of a co-defendant. We are not persuaded by these arguments and

affirm.




1
    Defendant now uses the name Abdul Malik Mumallik.

                                        2                                    A-4757-18
                                        I.

      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.

      A police officer and sheriff's officer testified that they were both on patrol

that night when they were dispatched to intercept the robbery suspects. The

police officer saw a black Acura turn onto the Garden State Parkway, followed,


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and activated his car lights and sirens. 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. The driver of the Honda was taken to the hospital and treated for

herniated discs in her spine.

      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.

      Defendant and Jones were indicted for the robbery and related crimes.

Defendant was also indicted for eluding and causing an injury while eluding.

      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 elected to testify at trial, and his testimony was in marked

contrast to the testimony given by Jones. Jones testified that he had known

defendant since childhood. On June 12, 2017, defendant picked Jones up in his

car and they visited defendant's mother at a nursing home. Following the visit,


                                       4                                   A-4757-18
defendant and Jones drove to a gas station, where they "bicker[ed]" about

whether they would rob the attendant and, if so, who would use a gun.

Ultimately, Jones pulled the gun and pointed it at the attendant and defendant

demanded and took money from the attendant.

      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.

      Defendant went on to testify that Jones directed him to get onto the

highway. While they were driving, Jones had the gun resting on his lap, and the

barrel of the gun was pointed toward defendant. Defendant acknowledged that

he did not stop when the police started to pursue his vehicle but claimed he did

not stop because he feared Jones might do something.

      At the close of the evidence, the court held a charge conference, during

which the duress charge was reviewed. Defense counsel assented to the charge.


                                        5                                    A-4757-18
Thereafter, the trial judge instructed the jury, including the model jury charge

on duress. After the judge gave the instruction, defendant did not object to the

duress charge or request any modification. After hearing the testimony and

considering the evidence, the jury convicted defendant of robbery, conspiracy

to commit robbery, possession of an imitation weapon for an unlawful purpose,

eluding, and aggravated assault while eluding.

      Following defendant's trial, Jones withdrew his plea to second-degree

robbery and pled guilty to second-degree conspiracy to commit robbery.

Thereafter, Jones was sentenced to special probation Drug Court. In allowing

Jones into the Drug Court probationary program, the sentencing judge found,

among other things, mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), noting

Jones' willingness to cooperate with law enforcement.

      At defendant's sentencing, the court merged the conspiracy conviction

with the robbery conviction and sentenced defendant to an extended term of

sixteen years in prison subject to NERA.         The court merged the eluding

conviction with the aggravated assault conviction and then sentenced defendant

to ten years in prison with periods of parole ineligibility and parole supervision

as prescribed by NERA. The court directed that the aggravated-assault sentence

was to run consecutive to the sentence for robbery. Finally, on the conviction


                                        6                                   A-4757-18
for possession of an imitation weapon for an unlawful purpose, defendant was

sentenced to eighteen months in prison to run concurrent with the other

sentences. Consequently, in total, defendant was sentenced to twenty-six years

in prison subject to NERA.

                                     II.

      Defendant appeals and presents two arguments for our consideration:

            POINT I – THE TRIAL COURT COMMITTED
            PLAIN ERROR IN CHARGING THE JURY ON THE
            DEFENSE OF DURESS. IGNORING STATE V.
            CONCEPCION, 

111 N.J. 373

 (1988) AND
            NUMEROUS OTHER DECISIONS, THE COURT'S
            CHARGE FAILED TO MOLD THE INSTRUCTION
            TO EXPLAIN THE LAW IN THE CONTEXT OF THE
            EVIDENCE, WHICH INVOLVED DEFENDANT'S
            EXCULPATORY TESTIMONY AND JONES'
            TESTIMONY ADMITTING THAT HE AND
            DEFENDANT "ARGUED" AND "BICKERED"
            BEFORE THE ROBBERY.

            POINT II – THE SENTENCES IMPOSED ON
            DEFENDANT AND WILLIAM JONES ARE
            SHOCKINGLY DISPARATE.      JONES, WHO
            WIELDED THE WEAPON DURING THE ROBBERY
            AND WHO, BY HIS OWN TESTIMONY, MADE
            THE DECISION TO ROB THE GAS STATION
            ATTENDANT, WAS SENTENCED TO DRUG
            COURT,   A   PROBATIONARY    SENTENCE.
            DEFENDANT'S SENTENCE WAS TWENTY-SIX
            YEARS    IN    STATE    PRISON    WITH
            APPROXIMATELY     TWENTY-TWO     YEARS
            PAROLE INEL[I]GIBILITY.    DEFENDANT'S



                                      7                                 A-4757-18
            SENTENCE IS UNLAWFUL BECAUSE OF THAT
            DISPAR[I]TY.

We discern no reversible error and affirm defendant's convictions and sentence.

      A.    The Instruction on Duress

      "Accurate and understandable jury instructions in criminal cases are

essential to a defendant's right to a fair trial." State v. Concepcion, 

111 N.J.

373

, 379 (1988). "Jury charges must provide a 'comprehensible explanation of

the questions that the jury must determine, including the law of the case

applicable to the facts that the jury may find.'" State v. Singleton, 

211 N.J. 157

,

181-82 (2012) (quoting State v. Green, 

86 N.J. 281

, 287-88 (1981)).

      In certain situations, jury instructions should be "molded" or "tailored" to

the facts presented at trial. State v. Robinson, 

165 N.J. 32

, 42 (2000). Molding

is necessary when "the statement of relevant law, when divorced from the facts,

[is] potentially confusing or misleading to the jury." Ibid.; see also State v.

Gartland, 

149 N.J. 456

, 475-77 (1997) (requiring tailored instructions on a

battered woman's right to self-defense and duty to retreat); Concepcion, 

111 N.J.

at 379-81

 (holding jury charge on recklessness should have incorporated "all of

defendant's relevant conduct"). While model jury charges are often useful, "[a]n

instruction that is appropriate in one case may not be sufficient for another case.

Ordinarily, the better practice is to mold the instruction in a manner that explains

                                         8                                    A-4757-18
the law to the jury in the context of the material facts of the case." Concepcion,

111 N.J. at 379

. Indeed, even when defense counsel does not make a tailoring

request, a defendant is at least "entitled to a charge consistent with his version

of the facts" that does not simply "track[] the prosecution's theory of the case."

State v. Martin, 

119 N.J. 2

, 16 (1990).

      Nevertheless, "not every failure [to mold jury instructions] is fatal." State

v. Tierney, 

356 N.J. Super. 468

, 482 (App. Div. 2003) (quoting State v. Bilek,

308 N.J. Super. 1

, 10 (App. Div. 1998)). When the facts are neither complex

nor confusing, a court does not have to provide an intricate discussion of the

facts in the jury charge. 

Ibid.

 (citing State v. Morton, 

155 N.J. 383

, 422 (1998));

see also State v. White, 

326 N.J. Super. 304

, 315 (App. Div. 1999) (holding that

although a more precise molding of the jury instructions to the facts would have

been preferable, the charge was sufficient because "as a whole, [it] was

consistent with the factual theories advanced by the parties").

      When a defendant fails to object to a jury charge, we review for plain

error, and "disregard any alleged error 'unless it is of such a nature as to have

been clearly capable of producing an unjust result.'" State v. Funderburg, 

225

N.J. 66

, 79 (2016) (quoting R. 2:10-2). Plain error in a jury charge is "[l]egal

impropriety in the charge prejudicially affecting the substantial rights of the


                                          9                                  A-4757-18
defendant and 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. Camacho, 

218 N.J. 533

, 554 (2014) (alteration

in original) (quoting State v. Adams, 

194 N.J. 186

, 207 (2008)).

      In reviewing any claim of error related to a jury charge, "[t]he charge must

be read as a whole in determining whether there was any error." State v. Torres,

183 N.J. 554

, 564 (2005) (citing State v. Jordan, 

147 N.J. 409

, 422 (1997)). In

addition, the error "must be evaluated in light 'of the overall strength of the

State's case.'"   State v. Walker, 

203 N.J. 73

, 90 (2010) (quoting State v.

Chapland, 

187 N.J. 275

, 289 (2006)). Furthermore, defense counsel's failure to

object to the jury instruction "gives rise to a presumption that he [or she] did not

view [the charge] as prejudicial to his [or her] client's case." State v. McGraw,

129 N.J. 68

, 80 (1992).

      The trial court charged the jury on duress using the model jury charge.

Defendant did not object to that charge, nor did he request a modification or

tailoring of the charge. Nevertheless, defendant now argues that the failure to

mold the charge was reversible error. Specifically, defendant argues that the

trial court should have tailored the charge to include a reference to defendant's

testimony that Jones put a gun to his back and ordered him to demand money


                                        10                                    A-4757-18
from the attendant. Defendant also argues that the charge should have been

molded to Jones' testimony that he and defendant argued over who would point

the gun at the attendant.

      Having reviewed the complete charges in light of the testimony presented

at trial, we discern no reversible error.     The jury clearly understood that

defendant was asserting the defense of duress. Defendant testified that Jones

put the gun to his back and that he was frightened both during the robbery and

the eluding. In that regard, the trial court told the jury that "defendant contends

he is not guilty because at the time of the offense he acted under duress. In other

words, he was coerced to commit each offense due to the use of or a threat to

use unlawful force against him."       Those facts were neither complex nor

confusing. Accordingly, when the trial court instructed the jury using the model

charge, there was no need to further tailor that charge because the duress defense

was clear. In short, the court's instruction was sufficient, and we discern no

error "clearly capable of producing an unjust result." R. 2:10-2.

      B.    The Sentence

      We review sentencing determinations under a deferential standard. State

v. Grate, 

220 N.J. 317

, 337 (2015) (citing State v. Lawless, 

214 N.J. 594

, 606

(2013)).   We "do[] not substitute [our] judgment for the judgment of the


                                       11                                    A-4757-18
sentencing court." Lawless, 214 N.J. at 606 (first citing State v. Cassady, 

198

N.J. 165

, 180 (2009); and then citing State v. O'Donnell, 

117 N.J. 210

, 215

(1989)). Instead, we will affirm a sentence unless

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience."

            [State v. Miller, 

237 N.J. 15

, 28 (2019) (alteration in
            original) (quoting State v. Fuentes, 

217 N.J. 57

, 70
            (2014)).]

      Two of the goals of the Criminal Code's sentencing provisions are to set

ranges so predictable sentences are imposed and to eliminate disparity in

sentences. State v. Palma, 

219 N.J. 584

, 592-93 (2014). "[A] sentence of one

defendant not otherwise excessive is not erroneous merely because a co-

defendant's sentence is lighter." State v. Hicks, 

54 N.J. 390

, 391 (1969) (first

citing State v. Gentile, 

41 N.J. 58

 (1963); and then citing State v. Tyson, 

43 N.J.

411

 (1964)). Nevertheless, "there is an obvious sense of unfairness in having

disparate punishment for equally culpable perpetrators." State v. Hubbard, 

176

N.J. Super. 174

, 177 (Resentencing Panel 1980). Accordingly, disparity in

sentencing should be avoided because "grievous inequities in sentences destroy



                                       12                                    A-4757-18
a prisoner's sense of having been justly dealt with, as well as the public's

confidence in the even-handed justice of our system." Hicks, 

54 N.J. at 391

.

      When sentencing a defendant who has participated in a crime with a co-

defendant or co-defendants, the sentencing court should determine whether the

co-defendant is identical or substantially like defendant regarding all relevant

sentencing criteria. State v. Roach, 

146 N.J. 208

, 233 (1996). In addition, a

sentencing court should "inquire into the basis of the sentences imposed on the

other defendant[,]" and "consider the length, terms, and conditions of the

sentence imposed on the co-defendant."          

Ibid.

   "If the co-defendant is

sufficiently similar, the court must give the sentence imposed on the co-

defendant substantive weight when sentencing the defendant in order to avoid

excessive disparity." 

Ibid.

      Defendant contends that his sentence is excessive when compared to the

probationary Drug Court sentence imposed on Jones. We disagree because the

situations of defendant and Jones were dissimilar. Jones provided meaningful

cooperation to the prosecutor, and he initially pled guilty to one count of second-

degree robbery. After testifying against defendant, he was allowed to withdraw

that guilty plea and he pled guilty to second-degree conspiracy to commit

robbery. The sentencing court then considered his criminal history and other


                                       13                                    A-4757-18
appropriate aggravating and mitigating factors and sentenced him to special

probation Drug Court.

      In contrast, defendant contested his guilt and proceeded to trial on

multiple charges. The jury convicted defendant of five charges, including four

second-degree crimes. Unlike Jones, defendant was found guilty of two separate

crimes: robbery and aggravated assault during eluding. Defendant had fifteen

prior indictable convictions in New Jersey and one felony conviction in New

York. By contrast, Jones had one prior conviction.

      After merging two of the convictions, defendant was sentenced to sixteen

years in prison for the robbery conviction and a consecutive term of ten years in

prison for the aggravated assault while eluding conviction. NERA mandated

that both those sentences have periods of parole ineligibility and parole

supervision.

      In imposing that sentence, the court found that defendant was subject to

an extended term as a persistent offender under N.J.S.A. 2C:44-3(a). The court

then found aggravating factors three, the risk of committing another offense; six,

the extent of defendant's criminal record "and the seriousness of the offenses of

which [he] has been convicted;" and nine, the need for deterrence. N.J.S.A.

2C:44-1(a)(3), (6), and (9).     The court found no mitigating factors and


                                       14                                   A-4757-18
accordingly determined that the aggravating factors substantially outweighed

the absent of mitigating factors.

      The determinations on the aggravating and mitigating factors are

supported by the record. The court also outlined the basis for the consecutive

sentence, explaining that the assault that occurred during the eluding was

separate with an independent objective from the robbery and that the crimes

involved different victims. See State v. Torres, ___ N.J. ___, ___ (2021) (slip

op. at 26) (noting sentencing courts are required to explain the imposition of

consecutive sentences in an on-record statement of reasons, focusing on the

sentence's overall fairness). Accordingly, we discern no error or abuse of

discretion in the sentence and given the crimes committed the aggregate prison

term of twenty-six years does not shock our judicial conscience.

      Affirmed.




                                     15                                  A-4757-18

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