                        NOT FOR PUBLICATION WITHOUT THE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.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1446-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANDREW ALFORD, a/k/a ALFRED
ANDREW L. BROCKINGTON, ALFORD
ANDREW L., ALFORD ANDREW,
BROCKINGTON AMOS, BROCKINGTON
ALFORD, ALFORD DAMON, and
ALFRED ANDREW,

     Defendant-Appellant.
______________________________

              Submitted April 24, 2017 – Decided June 19, 2017

              Before Judges Sabatino and Currier.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Camden County,
              Indictment No. 13-08-2522.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Jaime B. Herrera, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney for respondent (Maura G. Murphy,
              Assistant Prosecutor, of counsel and on the
              brief).

              Appellant filed a pro se supplemental brief.
PER CURIAM

     Defendant   Andrew   Alford   appeals     from    his   conviction,

following a jury trial, of conspiracy to commit theft from the

person, a lesser-included offense of conspiracy to commit robbery.

Defendant also appeals the imposed sentence.          After a review of

the contentions in light of the record and            applicable legal

principles, we affirm.

     We derive the facts from the evidence presented at trial.

Defendant was present during a drug transaction that took place

between co-defendant Michael Winters and the victim.         The victim

became angry when he believed that the drugs Winters was trying

to sell him were fake and he demanded           his money back.         An

eyewitness, Bobby Hill, testified that Winters struck the victim,

causing him to fall to the ground, hitting his head.           Defendant

went through the victim's pockets and took his money and phone.

Winters and defendant then left the scene.       Hill saw Winters and

defendant later that night, and defendant offered the witness

drugs and the victim's phone.          The victim later died from his

injuries.

     Sergeant Gabriel Rodriguez was working as a patrolman in

Camden that evening when he was "flagged down" by Joseph Vaughn,

another witness to the incident.         Sergeant Rodriguez testified

that he then observed "a male that was laying on his back face up

                                   2                             A-1446-15T4
unconscious."       The officer described the victim as bleeding from

the back of his head and ears, and "his jean pants pockets were

flipped inside out because of someone, you know, took something

out of the pockets."

       Vaughn also witnessed the drug transaction from his position

in a car parked across the street.          Although he gave conflicting

statements and testimony as to who had struck the victim, he did

see the victim fall to the ground.              As soon as the victim had

fallen, Vaughn said defendant "went in his pockets, took his --

took whatever he had in his pockets."

       Defendant     and   Winters   were   each   charged    with    robbery,

conspiracy to commit robbery, felony murder, and first-degree

murder.    They were tried separately.       After six days of trial, the

judge granted defendant's motion for judgment of acquittal on the

murder    charge,    but   found   sufficient    evidence    to   warrant    the

submission of the remaining charges to the jury.              The jury found

defendant not guilty on all charges except the lesser-included

offense of conspiracy to commit theft.             Defendant was sentenced

to an extended term of eight years of incarceration, with a four-

year   period   of    parole   ineligibility,      and   various     fines   and

penalties.

       Defendant raises the following issues on appeal:



                                       3                                A-1446-15T4
         POINT I
         THE JURY CHARGE WAS ERRONEOUS AND DEPRIVED
         DEFENDANT OF DUE PROCESS BECAUSE THE TRIAL
         COURT DEVIATED FROM THE LANGUAGE OF THE MODEL
         JURY INSTRUCTIONS AND OMITTED THE SUBJECT OF
         THE THEFT, AND BECAUSE THE TRIAL COURT FAILED
         TO CHARGE THE JURY THAT IF THE JURY BELIEVED
         DEFENDANT ONLY COMMITTED AN UNCHARGED OFFENSE
         THEN DEFENDANT MUST BE ACQUITTED. (NOT RAISED
         BELOW)

              A. The Trial Court's Failure to Identify
              the Theft Upon Which the Conspiracy
              Charge was Based Deprived Defendant of
              Due Process.

              B. Defendant was Deprived of Due Process
              Because The Trial Court Failed to Charge
              Jurors that if They Believed the Only
              Crime Committed was Theft by Deception
              or   Conspiracy  to   Commit  Theft   by
              Deception, Then They Must Acquit.

         POINT II
         THERE   WAS   INSUFFICIENT   EVIDENCE   OF   A
         CONSPIRACY FOR THE COURT TO HAVE CHARGED THE
         JURY WITH CONSPIRACY TO COMMIT ROBBERY AND THE
         LESSER-INCLUDED OFFENSE OF CONSPIRACY TO
         COMMIT THEFT FROM THE PERSON OF THE VICTIM.

         POINT III
         THE SENTENCE WAS EXCESSIVE AND REQUIRES A
         REMAND AS THE TRIAL COURT RELIED PRIMARILY ON
         DEFENDANT'S PAST CRIMINAL HISTORY IN IMPOSING
         A DISCRETIONARY EXTENDED TERM AT THE UPPER END
         OF THE RANGE WITH A PERIOD OF PAROLE
         INELIGIBILITY.

Defendant also filed a pro se supplemental brief, raising the

following issue:

         COUNT TWO OF APPELLANT'S INDICTMENT WAS
         CONSTRUCTIVELY AMENDED AT TRIAL IN VIOLATION
         OF U.S. CONST. AMENDS. VI AND XIV.

                               4                          A-1446-15T4
     The trial court charged the jury on the following offenses:

robbery and the lesser-included offense of theft; conspiracy to

commit robbery and the lesser-included offense of conspiracy to

commit theft; and felony murder and the lesser-included offenses

of reckless manslaughter, aggravated assault and simple assault.

The judge was not requested to and did not include in those jury

charges a description of the property allegedly taken by defendant.

     As a result of defendant's failure to object to the jury

instructions at trial, he must demonstrate plain error, i.e., that

the error was "clearly capable of producing an unjust result."     R.

2:10-2; see also State v. Afanador, 151 N.J. 41, 54 (1997); State

v. Macon, 57 N.J. 325, 336 (1971).     When a defendant fails to

object to the instruction at trial, "it may be presumed that the

instructions were adequate."   State v. Belliard, 415 N.J. Super.

51, 66 (App. Div. 2010), certif. denied, 205 N.J. 81 (2011)

(quoting State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.

2003)).   Raising jury instruction concerns at trial allows the

court to "fashion[] a better charge" to address those concerns.

State v. Delibero, 149 N.J. 90, 106 (1997).

     Defendant argues that the trial court erred by not identifying

the specific property allegedly taken by defendant in the jury

instructions on the theft charges.    We disagree.    According to


                                5                           A-1446-15T4
defendant,   the   State   offered   two     different   theories   for

defendant's conspiracy to commit theft: (1) "the conspiracy to

commit theft by deception in the sale of fake drugs to the victim,"

and (2) "the conspiracy to commit theft from the person of the

victim either during the drug sale or after the victim had been

knocked to the ground."     Defendant also asserts that the trial

court failed to fulfill its "obligation" to let the jury know that

they must acquit defendant if "they believed the only crime

committed was the sale of fake drugs or a conspiracy to sell fake

drugs."

     During the charge conference, counsel discussed whether the

trial court should charge the jury with theft by deception.

Defense counsel asserted he had "no problem" if the judge chose

to only charge the jury with theft from the person.1       The State's

position was that the evidence supported "a theft from the person."

In deciding to charge the jury only with theft from the person,

the court stated that it did not believe the State had the basis

for a theft by deception charge.

     Both eyewitnesses testified that defendant went through the

victim's pockets and took his money.       Neither discussed defendant


1
  Under the invited error doctrine, a defendant may not ask the
court to take a proffered approach, and thereafter seek relief on
a claim of error if the court in fact relied on defendant's
invitation. See State v. Jenkins, 178 N.J. 347, 358 (2004).

                                 6                             A-1446-15T4
being involved in the actual drug transaction.             During summations

the prosecutor discussed the theft of the money from the victim's

pockets by defendant. There is no support for defendant's argument

that the jury was confused by the lack of a description of the

specific property being referenced in the jury charge.                  The only

testimony offered in support of these charges was defendant's

involvement in the theft of the victim's money.

      This reasoning also leads us to reject defendant's contention

that the judge was obliged to advise the jurors that defendant

must be acquitted if the only illegal act they believed he was

involved in was the sale of fake drugs or a conspiracy to sell

fake drugs.     The charge of theft by deception was not before the

jury for its consideration.        The judge advised the jurors numerous

times that they must find defendant not guilty of a particular

offense if the State failed to prove each element of the charged

offense.   It is unreasonable to require the trial judge under

these circumstances to instruct the jury to find defendant not

guilty of a crime he had not been charged with committing.

      Defendant    argues   that   the     trial   court   erred   in    denying

defendant's motion for judgment of acquittal on the charge of

conspiracy to commit robbery and the lesser-included offense of

conspiracy to commit theft.         According to defendant, neither of

the   State's     two   eyewitnesses       "offered   testimony    indicating

                                       7                                 A-1446-15T4
defendant conspired with Winters to commit a robbery or theft."

Defendant contends that the testimony offered instead suggested

the theft was "a crime of opportunity."   We again disagree.

     We employ a de novo review of the denial of defendant's motion

for a judgment of acquittal on the conspiracy to commit robbery

charge and its lesser-included offense.   State v. Bunch, 180 N.J.

534, 548-49 (2004).     Defendant argues that the robbery of the

victim was "an unplanned act that arose in response to an argument

with the victim."     The trial judge disagreed and found that a

"jury could conclude that these two individuals, [defendant] and

Winters, were working in concert."

     There was ample evidence presented to support the judge's

conclusion and denial of the acquittal motion.      Both witnesses

described defendant as acting with Winters before, during, and

after the victim was struck and robbed.   Defendant was within two

to three feet of Winters during the drug transaction.   Hill heard

the men arguing as they ran away from the victim with one of them

saying: "[g]ive me some of that money."     Defendant and Winters

were seen together later that night and defendant gave Hill the

victim's cell phone. Giving all favorable inferences to the State,

there was sufficient evidence for a jury to conclude that defendant

and Winters conspired to rob the victim and take whatever was in

his pockets.   See State v. Reyes, 50 N.J. 454, 459 (1967).

                                8                             A-1446-15T4
     Defendant contends in his supplemental pro se brief that the

trial court erred in constructively amending the indictment.                   He

argues that third-degree conspiracy to commit theft is not a lesser

included offense of second-degree conspiracy to commit first-

degree robbery.    We find this argument meritless.

     We note that there was no objection to the inclusion of

conspiracy to commit theft as a lesser-included offense; defense

counsel in fact agreed to its inclusion.            Therefore, we review

defendant's    argument    under   the   plain   error       standard   and    we

disregard any error or omission "unless it is of such a nature as

to have been clearly capable of producing an unjust result."                   R.

2:10-2.

     It   is   well-established    that   theft    is    a    lesser-included

offense of robbery.       See, e.g., State v. Ingram, 196 N.J. 23, 39-

40 (2008) (internal citations omitted); State v. Walton, 368 N.J.

Super. 298, 308-09 (App. Div. 2004) (citing State v. Harris, 357

N.J. Super. 532, 539 (App. Div. 2003)).          Under N.J.S.A. 2C:15-1,

           A person is guilty of robbery if, in the course
           of committing a theft, he:

                 (1) Inflicts bodily injury or uses
                 force upon another; or

                 (2)    Threatens another with           or
                 purposely puts him in fear              of
                 immediate bodily injury; or



                                     9                                  A-1446-15T4
                 (3)   Commits or threatens immedi-
                 ately to commit any crime of the
                 first or second degree.

             [N.J.S.A. 2C:15-1(a) (emphasis added).]

Robbery is a crime of the first degree if, "the actor attempts to

kill anyone, or purposely inflicts or attempts to inflict serious

bodily injury, or is armed with, or uses or threatens the immediate

use of a deadly weapon."        N.J.S.A. 2C:15-1(b).

       Theft is therefore a lesser-included offense of robbery, as

theft is one essential element of the offense itself.                This is

true regardless of the grading of the robbery offense.

       We have considered the arguments defendant has offered to

establish that an extended term should not have been imposed and

that   his   sentence   was     excessive,     and   determined    they     lack

sufficient merit to warrant extended discussion in a written

opinion.     R. 2:11-3(e)(2).

       The trial court determined that defendant was eligible for

an extended sentence as a persistent offender; this conviction was

his eighth indictable offense and there were multiple violations

of probation and parole. In analyzing whether an extended sentence

was appropriate, the judge concluded that it was "required here

in the interest of public protection."           He stated that defendant

has    "failed   to   respond    to    prior    noncustodial      efforts     at



                                      10                              A-1446-15T4
rehabilitation[,]" and his criminal history "does exhibit conduct

reflective of a[n] escalating type of behavior."

     The judge's findings and balancing of the aggravating and

mitigating factors are supported by adequate evidence in the

record, and the sentence is neither inconsistent with sentencing

provisions of the Code of Criminal Justice nor shocking to the

judicial conscience.   See State v. Bieniek, 200 N.J. 601, 608

(2010); State v. Cassidy, 198 N.J. 165, 180-81 (2009).

     Affirmed.




                               11                         A-1446-15T4
