Robbery Charges Turned To Theft Conviction Which Was Reversed
- September 8, 2015
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Christopher Cherfane was charged with second-degree robbery (N.J.S.A. 2C:15-1(a)(1)) and second-degree conspiracy to commit robbery (N.J.S.A. 2C:5-2 and J2C:15-1(a)(1)). The evidence showed that Cherfane and a co-defendant, Blenner Gomes, conspired to obtain money for drugs by breaking into vehicles in a mall parking lot and, later, snatching purses. Cherfane utilized his white BMW to drive Gomes to the locations where the items would be taken and he was to act as the getaway driver once Gomes was in possession of stolen items. Gomes was able to wrestle a purse from a woman at a Rite Aid pharmacy but was followed from the scene, as he fled on foot, by a Rite Aid employee and an undercover officer. At the moment that Gomes was being ordered by the undercover officer to drop the stolen purse, Cherfane pulled up and Gomes jumped into Cherfane’s car. The two fled the scene and were later apprehended with Gomes prints being found in Cherfane’s car and Gomes implicating Cherfane in the purse snatching during his interrogation. Following a bench trial, Cherfane was convicted of third-degree theft by unlawful taking (N.J.S.A. 2C:20-3) and third-degree conspiracy to commit theft by unlawful taking (N.J.S.A. 2C:5-2, 2C:20-3). In State v. Cherfane, the defendant chose to represent himself at trial and waive his right to a jury trial. After questioning Cherfane about his reasons and his understanding of his rights, the trial judge allowed Cherfane to represent himself, although his retained counsel was designated as standby counsel by the trial judge and participated to some degree. Cherfane did not testify but Gomes testified against him. In the summation offered by standby counsel it was proposed that Cherfane was unaware of Gomes’ intended actions and, upon driving by and seeing Gomes being “held at gunpoint by someone in street clothes,” he attempted to rescue Gomes not knowing the man in plain clothes was a police officer. The judge found Gomes’ testimony to lack credibility and also found that there were no weapons utilized and the more appropriate charge was theft from a person, not robbery and found Cherfane guilty of theft, and conspiracy to commit theft, rather than robbery as charged. Cherfane was sentenced to 90 days in jail with a 2 year probation period. Cherfane appealed with counsel. Cherfane maintained that his right to represent himself was not ‘knowingly and intelligently’ waived as required by the Sixth Amendment to the United States Constitution and interpreted by the court in Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed.2d 562, 581 (1975). Under State v. DuBois, 189 N.J. 459 (2007), the NJ Supreme Court set forth 9 criteria to be used to determine whether a defendant understands their rights and the consequences of waiver thereof when making application to represent themselves in a criminal trial. Pursuant to State v. Reddish, 181 N.J. 553, 594 (2004), it is incumbent upon the court to insure that the defendant understands that he has the right not to testify and also the right not to incriminate himself in any manner. Further determination is required into whether the defendant understands that, as counsel, he could make comments from which it may be inferred that he had knowledge of incriminating evidence. State v. Blazas, 432 N.J. Super. 326, 338 (App. Div. 2013) cautioned that failure to insure a defendant intelligently and knowingly waives his right to counsel will, in most matters, lead to reversal of a conviction. The fact that the trial judge did not review the “ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination,” under DuBois, supra, 189 N.J. at 469, means that the judge did not fully explain the dangers of inadvertent self-incrimination. Additionally, during Chermane’s summation, the trial judge repeatedly questioned him to the extent that his standby counsel took over the summation on Chermane’s behalf. As a result of these compounded errors, Chermane’s conviction was reversed by the N.J. Appellate Division. Robbery is a very serious charges that carries substantial penalties including up to 20 years in prison. If you have been charged with robbery it is critical you obtain experienced criminal defense counsel to defend you and protect your rights. For more information regarding robbery, theft, weapons, distribution and other serious crimes in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.