State v. CarlosState v. Carlos
The crucial issue raised by this appeal is whether two or four robberies have been committed when a robber obtains money from two victims in the presence of two additional persons after threatening the four of them with a gun. Succinctly stated, the question presented in these robbery convictions is whether the person who is threatened must also be the victim of a theft or attempted theft. We hold that only two robberies were committed
A brief review of the procedural background and facts giving rise to this аppeal is essential to a resolution of the pivotal issues raised. The offenses were committed on September 15, 1980 at John‘s Arco Station, which is located on Route 20 in the vicinity of 33rd Street, in Paterson. The station was owned by John Pellegrino and his wife Frances. Edward Merritt worked as a gasoline pump attendant. Dorothy Gourley was a customer. These four people were in the small gas station office when defendant entered with his hands in his pockets. Just as Mrs. Pellegrino was about to offer assistance to defendant, he grabbed Merritt‘s shoulder, spun him around, and struck him in the chest with the butt end of an automatic revolver. Defendant then pointed the gun at Merritt and demanded money. Defendant ordered the four people to lie on the office floor. Merritt hesitated mоmentarily; whereupon he was shot in the right thigh.
Mr. Pellegrino did not immediately comply with the command to lie on the floor. Mrs. Pellegrino yelled to him to get down on the floor. As Pellegrino turned sideways, defendant fired a shot at him but missed his mark. Pellegrino and Merritt threw onto the floor money they had on their person. Defendant scooped up most of the money while pointing the revolver at the four peоple. Defendant then ran down East 33rd Street with Pellegrino in pursuit.
Following a jury trial defendant was convicted of four first degree robberies pursuant to
In this appeal defendant contends:
1. THE DENIAL OF DEFENDANT‘S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT FOUR CHARGING ROBBERY OF DOROTHY GOURLEY AND THE COURT‘S INSTRUCTION TO THE JURY ON COUNT FOUR DURING JURY DELIBERATIONS EXPOSED DEFENDANT TO CRIMINAL LIABILITY FOR ROBBERY BEYOND THE SCOPE OF THE LEGISLATURE‘S INTENT UNDER N.J.S.A. 2C:15-1.
2. THE DENIAL OF DEFENDANT‘S MOTION FOR A JUDGMENT OF ACQUITTAL ON THE CHARGE OF ROBBING FRANCES PELLEGRINO EXPOSED DEFENDANT TO LIABILITY FOR ROBBERY BEYOND THE SCOPE OF N.J.S.A. 2C:15-1.
3. THE COURT ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AS TO EDWARD MERRITT.
4. THE COURT SHOULD HAVE MERGED THE ASSAULT CHARGES INTO THE ROBBERY CHARGES PRIOR TO SUBMISSION OF THE CASE TO THE JURY.
5. THE DEFENDANT‘S SENTENCE WAS MANIFESTLY EXCESSIVE.
I. Elements of Robbery
The indictment charged that the offenses were committed on September 15, 1980. The robbery statute,
a. Robbery defined. A person is guilty of robbery, if in the course of committing a theft, he:
(1) Inflicts bodily injury upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or (3) Commits or threatens immediately to commit any crime of the first or second degree.
An act shall be deemed to be included in the phrase “in the course of committing a theft” if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.
b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing theft the actor attempts to kill anyone, or purposеly inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.
We perceive the offense of robbery under
The victim need not own the property taken or attempted to be taken. It is enough that the victim had a possessory or custodial interest in the property. State v. Butler, 27 N.J. 560, 589 (1958). The robbery statute makes no specific reference to the ownership of the property taken. The fact that the cash or personalty bеlongs to some one other than the thief is sufficient. State v. Ford, 92 N.J. Super. 356, 363 (App.Div. 1966).
The State argues that the robbery statute under the New Jersey Code of Criminal Justice eliminates the common law requirement that the victim of force or intimidation in a robbery also be the victim of a theft. This contention requires a discussion of the current statute‘s roots in prior law.
The common law defined robbery as “the felonious taking of personal property from the person or custody of another by force or intimidation.” State v. Butler, supra, 27 N.J. at 589; State v. Bowden, 62 N.J. Super. 339 (App.Div. 1960). Our prior robbery statute,
Clearly, the Legislature intended robbery under
The apparent rationale for including conduct involved in immediate flight in the present law is the offender‘s willingness to use force against those who would restrain him in flight. This willingness creates a compelling inference that the offender would have used force to commit the theft or attemptеd theft had there been need for it. II New Jersey Penal Code: Commentary, Final Report of the New Jersey Criminal Law Revision Commission 214 (1971) (hereinafter Final Comm‘n Report). See, also, Model Penal Code, Tentative Draft No. 11, at 70, n. 2.
Additionally, under prior law, asportation was required, no matter how slight. State v. McCoy, 114 N.J. Super. 479 (App.Div. 1971). Significantly, the New Jersey Code of Criminal Justice permits a conviction for robbery on the basis of an attempted theft where the other elements are present. Also,
Thus, the enactment of 2C:15-1 manifests a legislative intent to adopt a more expansive concept of robbery. There is no indication, however, that this intended expansion is as extensive as the State urges.
A comparison of
Indeed, the framers of the Code recognized there arе only a few circumstances, none here involved, in which there can be a conviction for robbery without a theft or attempted theft from the victim of the threats, force, injury or intimidation. The Final Comm‘n Report, supra at 214, states:
In a few circumstances, however, the Code would apply where property is not taken from the person or presence. For example, an offender might threaten to shoot the viсtim in order to compel him to telephone directions for the disposition of property located elsewhere.
When interpreting the intent of the Legislature, any unreasonable construction must be rejected when a reasonable reading is apparent. Our goal is to effectuate the legislative intent. State v. Fearick, 69 N.J. 32, 37 (1976). Hence, we reject the strained interpretation advanсed by the State. Defendant could not have been properly found guilty of robbery of each person subjected to force or intimidation unless a theft or attempted theft from that person was proved.
Defendant contends that his motion for a directed judgment of acquittal on count 4 (robbery) of the indictment should have been granted. The motion was based on the State‘s failure to prove a theft or attempted theft from Ms. Gourley. Defendant further contends that the court erred when it answered a question from the jury.
The judge‘s reinstruction of the jury in response to a question summarizes his charge to the jury on the four counts of robbery. He stated:
[I]n order for you to find the defendant guilty of robbery in the first degree, the State is required to prove each of the following elements beyond a reasonable doubt. One, that the defendant was in the course of committing a theft. Two, that while in the course of committing that theft he inflicted bodily injury or that while in the course of committing that theft, the defendant threatened another or purposely put him in fear of immediate bodily injury. Three, that while in the course of committing that theft, the defendant was armed with or used or threatened the immеdiate use of a deadly weapon and four, the defendant acted purposely in committing the theft and threatening another or purposely put another in fear of immediate bodily injury. You will notice that the word another is used throughout the statement of law that I just read to you. When the Statute says inflicts bodily injury upon another or threatens another with or purposely puts him in fear of immediаte bodily injury, it does not mean only the same person from whom the money was taken. It may include a person who was present during the commission of a theft, but from whom no money was taken. [The italics indicates what was not previously said to the jury.]
One of the reasons for denying the motion for a directed verdict of acquittal was the judge‘s recognition that the jury could find defendant guilty of robbery on counts 3 and 4 based upon an attempted theft from Ms. Gourley and Mrs. Pellegrino. Nevertheless, our careful study of the record reveals that the judge never instructed the jury on an attempted theft from Ms. Gourley. Furthermore, in giving the supplemental instructions to the jury, the judge instructed the jury that defendant could be guilty of a first degree robbery of Ms. Gourley by threatening her with the gun even though there was no theft or attempted theft from her. We find defendant‘s contention that the judge erred in the jury instructions to be most persuasive.
The confusion resulting from the omission of an appropriate instruction on attempted theft was compounded by error in the judge‘s recharge of the jury. In answer to the jury‘s question concerning count 4 in light of the fact that defendant did not take property from Ms. Gourley, the judge additionally instructed that when the robbery statute says “threatens another with immediate bodily injury” the threat could be directed against “a person who was present during the commission of a theft, but from whom no money was taken.”
Absent the appropriate charge on attempted theft and given this erronеous supplemental charge, the issue of theft or attempted theft from Ms. Gourley was effectively removed from the jury. We hold that each conviction for robbery must involve a theft or attempted theft from the possession or custodial care of the same person who is intimidated, threatened or injured, except in a limited number of special circumstances not here involved. Since the issue of theft or attempted theft from Ms. Gourley was removed from the jury‘s consideration, the conviction for robbery under count 4 is vacated.
Defendant next contends that the robbery conviction under count 3 of the indictment was improper because Mrs.
The State has urged us to mold the verdicts on counts 3 and 4 to find defendant guilty of the lesser included offense of aggravated assaults if the conviction for robbеries are vacated. The resulting convictions would be based upon defendant‘s act of pointing the gun in the direction of Mrs. Pellegrino and Ms. Gourley, in violation of
Defendant further contends that the aggravated assault upon Merritt and Pellegrino should be merged with the robbery offenses against them. We find this contention unpersuasive. The first dеgree robbery of Merritt under count 1 was based on committing a theft from him while armed with or threatening him with a deadly weapon.
The penalty for each of the four offenses was enhanced because the gun was possessed or used during the commission of the offenses. The enhancement provision is found in the predicate statute rather than in an external statute such as was the case under
Accordingly, the convictions for first degree robbery on counts 3 and 4 are vacated. The judgment of conviction on all other counts are affirmed. The matter is remanded to the trial court for entry of judgments of conviction on counts 3 and 4 for violations of
GAULKIN, J.A.D. (concurring).
The proofs at triаl showed that four persons were put in fear in the course of defendant‘s commission of thefts from two of those persons. The jury was instructed that defendant could be found guilty of robbery of each person who was put in fear, whether or not a theft or attempted theft from that person was proved.
I regard that instruction to be error, as do my colleagues. As it bears on the facts here,
While I therefore join in the judgment rendered by my colleagues, I do not join in their broader discussion of the intent, scope or interpretation of