#### STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JERRY JACKSON, DEFENDANT-APPELLANT.

Superior Court of New Jersey Appellate Division

Submitted May 10, 1983

Decided June 2, 1983.

*15Before Judges POLOW and BRODY.

*Joseph H. Rodriguez,*Public Defender, attorney for appellant *{David S. Lieberman,*designated counsel, of counsel and on the brief).

*Irwin I. Kimmelman,*Attorney General, attorney for respondent *{Jane A. Grail,*Deputy Attorney General, of counsel and on the letter brief).

*16PER CURIAM.

Defendant Jerry Jackson and his co-defendant Kenneth Hardison were charged in the same indictment with conspiracy to commit robbery, armed robbery of three individuals in a tavern on November. 19,1980, possession of a handgun for an unlawful purpose, and aggravated assault and armed robbery of a motel manager in his office later the same night. Hardison was also charged with possession of brass knuckles for an unlawful purpose.

Both defendants were found not guilty of the tavern robberies1 but were convicted of all other charges. Prison terms were imposed on Jackson as follows: on the conspiracy charge, a five year term; on the charge for possession of a gun for an unlawful purpose, a five year term consecutive to the conspiracy sentence; on the aggravated assault charge, a ten year term consecutive to the conspiracy sentence; on the charge for armed robbery of the motel manager, a fifteen year term consecutive to the conspiracy sentence. All of the sentences were imposed to run concurrently except for the conspiracy sentence to which all others were made consecutive. Thus, an aggregate term of twenty years in prison was imposed together with parole ineligibility for five years and a $100 penalty payable to the Violent Crimes Compensation Board.

On this appeal, defendant Jackson challenges the trial judge’s refusal to grant separate trials to each of the two defendants, the refusal to sever the counts of the indictment for trial, admissibility of identification evidence, failure to merge various counts of the indictment, certain jury instructions and the weight of the evidence. He also attacks the sentence imposed as manifestly excessive. Codefendant Hardison has filed a separate appeal which we will resolve in a separate opinion.

*17On the evening of November 19,1980, co-defendants Jackson and Hardison travelled from Paterson to New Brunswick with Dennis Porter and Bernard Brown in a 1974 red and white Cadillac. When Jackson got into the car he was asked if he wanted “to make some money.” All four arrived at the Lincoln Cafe, a tavern in New Brunswick, at approximately 11:30 p.m. They bought drinks and snacks and played pinball and pool. When only three other persons remained in the tavern, two customers, Patrick Howlin and Janet Marino and the bartender, Donald Wilson, one of Jackson’s group jumped on the bar and pointed a gun at Wilson’s head. Wilson was forced to lie on the floor behind the bar and his watch was taken. One of the robbers took $301 from the cash register. Marino’s pocketbook was taken from her and she was ushered into the men’s room followed by Howlin and Wilson. The four robbers then moved the cigarette machine against the door and left the tavern.

At approximately midnight Jackson and his three companions arrived at the Edison Motor Lodge. Two of them entered the registration office. They inquired about accommodations and then told the manager that they would go outside to confer with their girlfriends. They soon returned and robbed the manager at gun point. The victim, who identified Jackson as the gunman and Hardison as his companion, was forced to his hands and knees in the rear office where he was robbed. One of the robbers, identified as Jackson said, “Let’s shoot him” but the other identified as Hardison replied “Let’s knock him cold because he won’t go any place.” With that, Hardison, using brass knuckles, punched the manager in the mouth. The two robbers were then observed fleeing toward a red and white Cadillac.

When the red and white Cadillac left the Edison Motor Lodge, it was observed within a few blocks by police officers in an unmarked car. When they were advised that a red and white Cadillac had been involved in a motel robbery, they gave chase. The Cadillac stopped suddenly when it straddled a cement divider and the four men fled on foot. Jackson was *18discovered under a school bus in a parking lot nearby. Hardison was apprehended from underneath a parked car. At 1:40 a.m. Howlin and Marino identified Hardison and Jackson as participants in the tavern robbery. Wilson also identified Hardison but was unsure of Jackson. A day or two later the motel manager, who was at home, identified Jackson and Hardison from photographic arrays.

Jackson and Hardison both gave a number of oral statements to the police. Both admitted their presence in the tavern and the occurrence of the robbery. They variously accused their other two companions and denied any intention to participate. In any event, both were acquitted of the tavern robbery charges.

Their statements also conceded that they stopped at the Edison Motor Lodge. Jackson variously claimed that only Brown and Porter went in. In another statement he admitted being “involved with” the motel robbery. Hardison admitted that he went into the motel office “to inquire about a room.” He claimed that Brown and Porter committed the armed robbery. In another statement, however, Hardison admitted involvement in the robbery.

We have considered the argument offered by both co-defendants challenging the denial of their motions for separate trials. Our review of the record including the various inculpatory statements made by each of them fully satisfies us that those statements were “interlocking confessions” which could be admitted in a joint trial within the doctrine of *Parker v. Randolph,*442 *U.S.*62, 99 *S.Ct.*2132, 60 L.Ed.2d 713 (1979).

In *Bruton v. United States,*391 *U.S.*123, 88 *S.Ct.*1620, 20 L.Ed.2d 476 (1968), a nontestifying codefendant’s confession implicating Bruton was admitted into their joint trial with a cautionary instruction. *Id.*at 124-125, 88 *S.Ct.*at 1621-1622. The United States Supreme Court held that admission of such a confession violated Bruton’s “right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” *19
      *Id.*at 126, 88 *S.Ct.*at 1622. The Court reasoned that Bruton was denied his right of confrontation because the codefendant’s confession was testified to by another and thus was “in a form not subject to cross-examination.” *Id.*at 128, 88 *S.Ct.*at 1623. Furthermore, it rejected the premise that a properly instructed jury could and would ignore “the confessor’s inculpation of the nonconfessor in determining the latter’s guilt.” *Id.*at 129, 88 *S.Ct.*at 1624.

However, in *Parker v. Randolph,*442 *U.S.*62, 99 *S.Ct.*2132, 60 L.Ed.2d 713 (1979), Justice Rehnquist, writing for a plurality of the United States Supreme Court, held that when a defendant has confessed and his confession interlocks with that of his codefendant, admission of the interlocking confessions in a joint trial with proper limiting instructions “conforms to the requirements of the Sixth and Fourteenth Amendments to the United States Constitution.” *Id.*at 75, 99 *S.Ct.*at 2140. Examining the effect of this new rule upon the right of cross-examination, a key factor in *Bruton,*Justice Rehnquist stated

> ... the incriminating statements of a codefendant will seldom, if ever, be of the ‘devastating’ character referred to in Bruton when the incriminated defendant has admitted his own guilt. The right protected by Bruton—the ‘constitutional right of cross-examination,’ *id.*[391 *U.S.].*at 137 [88*S.Ct.*at*1628],*has far less practical value to a defendant who has confessed to a crime than to one who has consistently maintained his innocence, [at 73, 99 *S.Ct.*at 2139],

> #*#***❖*

> But when the defendant’s own confession is properly before the jury, we believe that the constitutional scales tip the other way. The possible prejudice resulting from the failure of the jury to follow the trial court’s instructions is not so ‘devastating’ or ‘vital’ to the confessing defendant to require departure from the general rule allowing admission of evidence with limiting instructions, [at 75, 99 *S.Ct.*at 2140],

In *State v. Young,*46 *N.J.*152 (1965), the New Jersey Supreme Court anticipated the *Bruton*holding in its ruling that in joint trials the out-of-court confession of a defendant implicating a codefendant may not be admitted at trial unless there can be effective deletion of all references to the nonconfessor and in the event effective deletion is not feasible, there must be separate trials. *Id.*at 159. Notably, the *Young*court reasoned *20that a cautionary instruction that the confession could only be considered as evidence against the confessor was inadequate to protect the codefendant’s right to a fair trial. *Id.*at 157-158. *See*R.3:15-2; *State v. Corsi,*86 *N.J.*172, 175-177 (1981). However, even where violations of *Young*and *Bruton*have been found, our courts have not required automatic reversal where the evidence against the nonconfessor defendant is overwhelming and any prejudice to him is harmless beyond a reasonable doubt. In short, our courts have applied a “harmless error” approach to *Young*and *Bruton*violations. *See State v. Gardner,*54 *N.J.*37, 45 (1969); *State v. Biddle,*150 *N.J.Super.*180, 183 (App.Div.1977), certif. den. 75 *N.J.*542 (1977).

We are fully satisfied that the trial of both defendants together and use of their confessions with limiting instructions was proper under the “harmless error” approach of *State v. Young,*or the per se rule adopted by the United States Supreme Court in *Parker v. Randolph, supra.*All of the statements of both defendants admitted their presence at the scene of both robberies although both defendants tended to minimize their participation. Neither the refusal of separate trials for each defendant nor use of their statements in the joint trial was reversible error.

Defendants also attack the joinder of offenses as prejudicial. Here, again, our analysis of the record satisfies us that the trial judge did not err in denying the motions for separate trials for the Lincoln Cafe and Edison Motor Lodge offenses.

Appellant contends that the two robbery charges were based upon separate and unrelated events. We find, to the contrary, that the record includes evidence of a “common scheme or plan” rather than separate and unrelated events. Thus, the offenses could properly be joined for trial. R.3:7-6. *See State v. Whipple,*156 *N.J.Super.*46 (App.Div.1978). Furthermore, the charge of conspiring to rob encompassed both robberies as overt acts including the actidns of the participants before, *21during and after both events. Accordingly, the joint trial was required by the interrelated nature of the charges. *See State v. Yormark,*117 *N.J.Super.*315, 331 (App.Div.1971), certif. den. 60 *N.J.*138 (1972), *cert.*den. 407 *U.S.*925, 92 *S.Ct.*2459, 32 L.Ed.2d 812 (1972).

Finally, in view of Jackson’s and Hardison’s arguments that evidence of one robbery may have been used to establish guilt in the other robbery, the test of prejudice is “whether a jury could arrive at a determination on each charge irrespective of the evidence concerning guilt on other charges.” *State v. Cole,*154 *N.J.Super.*138, 143 (App.Div.1977), certif. den. 78 *N.J.*415 (1978). In this case, the jury’s action in acquitting defendants of the robbery of the Lincoln Cafe victims while convicting them of the Edison Motor Lodge robbery demonstrates that it was able to consider the evidence relating to each of the charges separately. *See State v. Hines,*109 *N.J.Super.*298, 306 (App.Div.1970), certif. den. 56 *N.J.*248 (1970), *cert.*den. 400 *U.S.*867, 91 *S.Ct.*108, 27 L.Ed.2d 106 (1970).

Appellant also argues that he was prejudiced by the joint trial because he objected to the jury instruction concerning a defendant’s election not to testify. The instruction was requested by Hardison. Appellant points out that this difficulty would have been avoided in separate trials. However, we are satisfied that this contention, also, must fail.

The giving of a cautionary instruction regarding the defendant’s failure to testify does not violate his privilege against self-incrimination under the Fifth and Fourteenth Amendments. *Lakeside v. Oregon,*435 U.S. 333, 340-342, 98 *S.Ct.*1091, 1095-1096, 55 *L.Ed.2d*319 (1978). In a joint trial, where one co-defendant requests such an instruction and the other objects, the instruction should be given despite the objection. *See State v. McNeil,*164 *N.J.Super.*27 (App.Div.1978), certif. den. 79 *N.J.*497 (1979); *State v. Lynch,*177 *N.J.Super.*107 (App.Div.1981), certif. den. 87 *N.J.*347 (1981). Furthermore, this potential problem is not sufficient in itself to require *22severance of co-defendants where, as here, they are properly joined.

We have examined appellant’s allegations of error with regard to identification procedures. We find them to be without merit. Since both defendants were found not guilty on the tavern robbery charges, the identifications by the tavern victims are academic. Furthermore, they do not deny their presence in the tavern when the robbery occurred. With respect to the photographic identifications by the motel manager, we are fully satisfied that the identification procedures were not unduly suggestive. *See State v. Matlack,*49 *N.J.*491, 498 (1967). The in-court identifications were properly admitted without a substantial likelihood of irreparable misidentification. *See State v. Ford,*165 *N.J.Super.*249, 254 (App.Div.1978) (Michels, J., dissenting), rev’d on dissent, 79 *N.J.*136 (1979).

Appellant argues that the Code of Criminal Justice prohibits conviction for both conspiracy to rob and the substantive robbery offense. We agree. *N.J.S.A.*2C:1-8(a)(2). Here, the conspiracy count would encompass both the Edison and New Brunswick robberies. The State suggests that defendant was found guilty of conspiring to commit the tavern robbery but was not convicted of that substantive offense. Thus, reasons the State, the conspiracy had “multiple and additional objectives” and somehow avoids the statutory bar.

There is no way to determine whether the jury convicted defendant of conspiracy to commit the tavern robbery or conspiracy to commit the motel robbery or conspiracy to commit both. The essence of conspiracy is the illegal agreement. The illegal agreement included robbery and the jury found defendant guilty of the motel robbery within the ambit of the conspiracy. The conspiracy conviction and the sentence imposed thereon must be vacated.

Our review of the record satisfies us that appellant’s argument concerning the weight of evidence and the allegedly duplicitous count of the indictment are clearly without merit. *23R.2:11-3(e)(2). However, when Jackson was sentenced, the trial judge conceded that the conviction for possession of a weapon for an unlawful purpose merged with the armed robbery conviction. The judge attempted to deal with the merger by imposing concurrent sentences. This he may not do. Defendant is entitled to have his record free of the merged weapons count. Thus, the conviction and sentence for possession of a weapon for an unlawful purpose must be vacated. *State v. Bono,*128 *N.J.Super.*254, 258 (App.Div.1974), certif. den. 65 *N.J.*572 (1974). Nevertheless, we are fully satisfied that the aggravated assault charge is entirely separate from and does not merge with the armed robbery charge. The trial judge gave instructions which define the elements of each offense. The elements of each offense were entirely separate and distinct. The jury did not have to rely on the same proof to find defendant guilty of aggravated assault as it relied upon for the armed robbery conviction. They were separate and distinct charges. *See State v. Mirault, 92 N.J.*492, 501-506 (1983).

We have considered the nature of the offenses, the comments of the sentencing judge and the contents of the presentence investigation. We are fully satisfied that the sentences imposed, except as must be vacated consistent with this opinion, are not manifestly excessive. *State v. Whitaker,*79 *N.J.*503, 512 (1979). However, the mandatory term of parole ineligibility was imposed with no indication of the conviction to which it is applicable. We conclude that it was intended to apply to the robbery offense and was therefore not inappropriate under the circumstances. *N.J.S.A.2C-43-6(b).*Additionally, the record would suggest that the trial judge intended to make the aggregate sentence on these offenses concurrent with unrelated county jail terms. On remand that intention should be specifically set forth on the record.

The sentences on the conspiracy and possession of a weapon for an unlawful purpose charges are vacated. In all other respects the convictions and sentences imposed are affirmed. *24The matter is remanded to the trial court to amend the judgment to provide that the term of parole ineligibility applies to the robbery conviction and that the aggregate sentence is to run concurrently with the jail term Jackson was serving when sentenced.

The trial judge granted defendants’ motion for acquittal with regard to one of the tavern robberies. The jury acquitted defendants of the other two tavern robbery charges.