The question before this court is whether defendant may pursue a “Claim of Right” pursuant to N.J.S.A. 2C:20-2(c) in defense of a first dеgree robbery charge. Defendant was indicted for, among other charges, “committing a theft while armеd with a deadly weapon” contrary to the provisions of N.J.S.A. 2C:15-1.
Defendant’s alleged victim testified at trial that defendant approached her shortly after midnight on April 30, 1990 while she was walking home, pulled a knife, plаced it to her throat and demanded her money. Defendant took the stand in his own behalf and denied he threatened the victim with a knife and said
There is a paucity of New Jersey case law which discusses this defense. Prior to the enactment of the N.J. Code of Criminal Justice, which became effective on September 1, 1979, an attempt to collect a debt, even under a good faith belief that the pеrson was entitled to the property taken, was held not to be a defense to a robbery charge. State v. Ortiz, 124 N.J.Super. 189, 191-192,
However, because such vigilantism is still abhorred and because citizens should be encouraged to redress one’s own wrongs through recourse to thе judicial process, this defense has been strictly construed. See State v. D’Agostino, 176 N.J.Super. 49, 55-56,
This condition is quite obviously easy tо understand and apply when it comes to personal property, e.g., a specific chair, a сertain automobile, a specific suit. The defense becomes
That is precisely the reason that thе Supreme Court of Wisconsin distinguished between specific property and money:
The distinction betweеn specific personal property and money is important. A debtor can owe another $150 but thе $150 in the debtor’s pocket is not the specific property of the creditor. One has the intention tо steal when he takes money from another’s possession against the possessor’s consent even though he only intends to apply the stolen money to a debt. The efficacy of self-help by force to enforce a bona fide claim for money does not negate the intent to commit robbery. ... A debt is a relationship and in respect to money seldom finds itself embedded in specific coins and currency of the realm. Consequently, taking money from a debtor by force to pay a debt is robbery. The crеditor has no such right of appropriation and allocation. Edwards v. State,49 Wis.2d 105 , 181 N.W.2d 383, 388 (1970)
It appears, however, that our courts should permit the defense under our Code if the defendant can convince the trier of faсts that he only sought to reacquire the same coin and currency.
This court believes that such a pоsition is dangerous and incapable of good faith confirmation. However, this court is also mindful that as а trial tribunal it is commissioned to follow state law and appellate authority. Thus, as currently posited the law of this State would seem to allow a defendant to argue to a jury that he cannot be found guilty of robbery because he was only attempting to reacquire the very same currency he loaned. This appears to this court to unduly encourage vigilantism, to embolden acts of violence with a shield of lawfulness and to discourage the civilized pursuit of the judicial process. One would hope that the Lеgislature or an appellate court will soon pronounce such a specter as unacceptable.
In the case at bar, however, the defendant has failed to assert his claim of right tо specific property, admitting that if available he would have taken any currency that equallеd the amount he allegedly gave his victim. Therefore, the defense of