Monday, August 13, 2007

ROBBERY IN THE FIRST DEGREE

(N.J.S.A. 2C:15-1)
The defendant is charged with the crime of robbery. The indictment reads in pertinent part as follows:
(Read Indictment)
The pertinent part of the statute on which this indictment is based reads as follows:
A person is guilty of robbery if, in the course of committing a theft, he:
(select appropriate)
(a) knowingly1 inflicts bodily injury or uses force2 upon another;
or
(b) threatens another with or purposely puts (him/her) in fear of immediate bodily injury;
or
(c) commits or threatens immediately to commit any crime of the first or second degree.
In order for you to find the defendant guilty of robbery, the State is required to prove each of the following elements beyond a reasonable doubt:
1. that the defendant was in the course of committing a theft,
2. that while in the course of committing that theft the defendant
(Choose from the following three)
a. knowingly inflicted bodily injury or used force upon another.3
b. threatened another with or purposely put (him/her) in fear of immediate bodily injury.
c. committed or threatened immediately to commit the crime of .4
As I have said, the State must prove, beyond a reasonable doubt, that the defendant was
1 In State v. Sewell, 127 N.J. 133 (1992) the Supreme Court held that the state must prove "knowledge" as the requisite mental state for the injury/force element of robbery.
2 Note: If the crime occurred before February 6, 1981, the jury should not be instructed on the use of force element. See L. 1981, c. 22, § 1 adding “use of force” to (a)(1).
3 State v. Mirault, 92 N.J. 492, 498-99 (1983), holds that "another" can include a responding police officer or someone else other than the victim of the theft.
4 The statute refers to crimes of the first or second degree. The proofs must indicate a specific crime and the jury must be charged the elements of that offense.
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in the course of committing a theft. In this connection, you are advised that an act is considered to be "in the course of committing a theft" if it occurs in an attempt5 to commit the theft, during the commission of the theft itself, or in immediate flight after the attempt or commission.6
Theft is defined as the unlawful taking, or exercise of unlawful control over property of another with purpose to deprive (him/her) thereof.7
I have used the phrase "with purpose." You may hear me use that phrase or the word "purposely" again. I shall now explain what that means. A person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if (he/she) is aware of the existence of such circumstances or (he/she) believes or hopes that they exist. “With purpose,” “designed,” “with design,” or equivalent terms have the same meaning. Purpose is a state of mind that cannot be seen and can only be determined by inference from conduct, words or acts. Therefore, it is not necessary that the State produce witnesses to testify that a defendant said that (he/she) purposely did something. (His/Her) purpose may be gathered from (his/her) acts and conduct, from all that (he/she) said and did at the particular time and place, and from all the surrounding circumstances reflected in the testimony [and adduced at trial].
In addition to proving beyond a reasonable doubt that the defendant was in the course of committing a theft, the State must also prove, beyond a reasonable doubt, that while in the course of committing that theft
(Charge the alternatives that follow, depending on the nature of the case.)
1. The defendant knowingly inflicted bodily injury or used force8 upon another.
A person acts knowingly with respect to the nature of (his/her) conduct or the attendant circumstances if (he/she) is aware that (his/her) conduct is of that nature or that such circumstances exist or if (he/she) is aware of a high probability of their existence. A person acts
5 If attempt is involved, define attempt. See N.J.S.A. 2C:5-1a.
6 State v. Mirault, 92 N.J. at 500-01.
7 See N.J.S.A. 2C:20-3 and charge elements of theft appropriate to your case.
8 For theft from the person where the amount of force does not elevate the charge to robbery, see Model Charge for N.J.S.A. 2C:20-3a (theft of movable property).
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knowingly with respect to the result of (his/her) conduct if (he/she) is aware that it is practically certain that (his/her) conduct will cause such a result.
Knowledge is a condition of the mind that cannot be seen and that can be determined only by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said that (he/she) had a certain state of mind when (he/she) engaged in a particular act. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of the defendant’s acts and conduct, from all that (he/she) said and did at the particular time and place, and from all surrounding circumstances. The phrase "bodily injury" means physical pain, illness, or any impairment of physical condition. "Force" means an amount of physical power or strength used against the victim and not simply against the victim's property. The force need not entail pain or bodily harm and need not leave any mark. Nevertheless, the force must be greater than that necessary merely to snatch the object from the victim's grasp or the victim's person, and the force must be directed against the victim, not merely the victim's property.9
(CHARGE THE FOLLOWING IF THERE IS AN ISSUE REGARDING THE TIMING OF THE USE OF FORCE):
For the crime of robbery, the intent to commit a theft must precede or be coterminous with the use of force. In other words, the defendant must have formed the intent to commit a theft before he/she uses force. If you find the defendant formed the intent to commit a theft after his/her use of force, then he/she cannot be found guilty of robbery.10
[{IF MULTIPLE VICTIMS ARE ALLEGED AND THE FACTS WARRANT, CHARGE THE FOLLOWING:
To find the defendant guilty of robbery, you must be unanimous that the defendant used force against (NAME OF VICTIM Number One or NAME OF VICTIM Number Two)]. In other words, if you find that the defendant used force, but do not unanimously agree that he/she used force against (THE NAME OF VICTIM), then the State has failed to prove the existence
9 State v. Sein, 124 N.J. 209, 217-18 (1991).
10 State v. Lopez, 187 N.J. 91, 101 (2006).
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of force beyond a reasonable doubt.11}
or
2. The defendant threatened another with or purposely put (him/her) in fear of immediate bodily injury. The phrase "bodily injury" means physical pain, illness or any impairment of physical condition. Although no bodily injury need have resulted, the prosecution must prove that the defendant either threatened the victim with or purposely put (him/her) in fear of such bodily injury;
or
3. The defendant committed or threatened immediately to commit (here specify the first or second degree crime alleged by the State and define to the extent necessary) while in the course of committing the theft...
If the element that raises the robbery to first degree is that the robber was armed with, or used or threatened the immediate use of a deadly weapon, charge as follows:)
A section of our statute provides12 that robbery is a crime of the second degree, except that it is a crime of the first degree if the robber:
Is armed with, or uses or threatens the immediate use of a deadly weapon.
[Charge when a real weapon is used or believed to be used:]
In this case, it is alleged that the defendant was armed with13 (used or threatened the immediate use of) a deadly weapon while in the course of committing the robbery. In order for you to determine the answer to this question, you must understand the meaning of the term "deadly weapon."14 A "deadly weapon" is any firearm or other weapon, device, instrument, material or substance (whether animate or inanimate) which in the manner it is used or intended to be used, is known to be capable of producing death or serious bodily injury or which in the
11 See State v. Gentry, 183 N.J. 30 (2005). The court should use a special verdict form with an interrogatory to determine if the jury found force against any particular victim.
12 N.J.S.A. 2C:15-1b.
13 Query whether one can be convicted of robbery if he is armed unbeknownst to the victim, when he commits a theft. The element of apprehension of the victim would be missing, but a strict reading of the statute would indicate that robbery has been committed. See State v. Riley, 306 N.J. Super. 141 (App. Div. 1997) (a pocket knife has been held not to be a deadly weapon when it was in defendant’s pocket but not used in any way in the robbery).
14 See N.J.S.A. 2C:11-1(c)-Note that this definition was amended by L. 1981, c. 384, sec. 1 eff. Jan. 4, 1982.
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manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.
In this case, the State alleges defendant was armed with ______ [describe the weapon]. You must determine if this object qualifies as a deadly weapon and if the State has proven beyond a reasonable doubt that defendant used it in the course of committing this robbery.
[Or]
[If the allegation is defendant threatened the use of a weapon without actually possessing or displaying a real weapon but engaged in conduct or gestures which simulated a weapon and which would lead a reasonable person to believe defendant possessed a deadly weapon, charge the following15:]
In this case, it is further alleged that defendant did not actually possess a deadly weapon but instead threatened the immediate use of such a weapon and engaged in conduct or gestures which simulated possession of a deadly weapon and which would lead a reasonable person to believe defendant possessed such a weapon.
First, I must explain to you what a deadly weapon is. A "deadly weapon" is any firearm or other weapon, device, instrument, material or substance (whether animate or inanimate) which in the manner it is used or intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.
To simulate means to assume the outward qualities or appearance of, often with the intent to deceive.16 It is a feigned, pretended act, usually to mislead or deceive.17
The State does not have to prove that defendant actually possessed a real, deadly weapon. Rather, the State must prove beyond a reasonable doubt that defendant led _______ (the victim) to reasonably believe by words and conduct or gestures that defendant possessed such a deadly weapon. The State must prove beyond a reasonable doubt that defendant not only threatened the immediate use of a deadly weapon, but it must also prove beyond a reasonable doubt that
15 State v. Chapland, 187 N.J. 275 (2006).
16 Webster’s Ninth New Collegiate Dictionary (1984).
17 Black’s Law Dictionary (7th Ed. 1999).
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defendant engaged in conduct or gestures which would lead a reasonable person to believe defendant possessed a deadly weapon.18
Thus, this element may be proven by evidence of an unequivocal or unambiguous simulation (of a weapon)(of a concealed weapon), or by an equivocal or ambiguous gesture coupled with threatening words that completes the victim’s impression of a deadly weapon.19 In other words, an unequivocal or unambiguous simulation means the defendant’s (acts) or (gestures) are a clear and unmistakable effort to simulate a (weapon)(a concealed weapon). In that circumstance, no further words are needed to prove the element. However, a gesture is equivocal or ambiguous if it is unclear or inconclusive in and of itself. If the gesture is unclear or subject to interpretation, then proof of threatening words are also needed.
In this case, the State alleges defendant: ____________ [describe the words and conduct or gestures alleged]. [Charge if appropriate: Additionally, defendant alleges the following: _____________ (state defense position, if any alleged)]. You must determine whether the State has proven beyond a reasonable doubt that the combination of words and conduct or words and gestures created a reasonable belief in the victim to believe defendant possessed a deadly weapon capable of causing death or serious bodily injury.
[Charge in all cases:]
"Serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.20
To summarize, if you find that the State has not proven beyond a reasonable doubt any element of the crime of robbery as I have defined that crime to you, then you must find the defendant not guilty.
If you find that the State has proven beyond a reasonable doubt that the defendant
18 In State v. Chapland, 187 N.J. 275 (2006), the Supreme Court clarified that a victim need not see the tangible item that is supposed to be the simulated weapon, emphasizing that the jury should be instructed that it must focus on the combined effect of the defendant’s words and/or conduct in determining whether the State has met its burden of proof on this element. Id. at 277.
19 Chapland, 187 N.J. at 292.
20 See N.J.S.A. 2C:11-1b.
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committed the crime of robbery as I have defined that crime to you but if you find that the State has not proven beyond a reasonable doubt that the defendant was armed with, or used or threatened the immediate use of a deadly weapon (or engaged in conduct or gestures which would lead a reasonable person to believe that defendant possessed a deadly weapon) at the time of the commission of the robbery, then you must find the defendant guilty of robbery in the second degree.
If you find that the State has proven beyond a reasonable doubt that the defendant committed the crime of robbery and was armed with a deadly weapon or used or threatened the immediate use of a deadly weapon (or engaged in conduct or gestures which would lead a reasonable person to believe that defendant possessed a deadly weapon) at the time of the commission of the robbery, then you must find the defendant guilty of robbery in the first degree.
(If the element that raises the robbery to first degree is that the robber attempted to kill the victim or purposely inflict or attempted to inflict serious bodily injury upon the victim, charge as follows:)
A section of our statute provides21 that robbery is a crime of the second degree, except that it is a crime of the first degree if the robber:
a. purposely attempted to kill anyone,
or
b. purposely inflicted or attempted to inflict serious bodily injury.
In this case it is alleged that:
(Select appropriate)
1. The defendant attempted to kill while in the course of committing the theft.
2. The defendant purposely inflicted or attempted to inflict serious bodily injury upon while in the course of committing the theft. In order for you to determine the answer to this question you must understand that the meaning of the term "serious bodily injury" means bodily injury which creates a substantial
21 N.J.S.A. 2C:15-1b.
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risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member of organ.22
In order for you to determine the answer to this question, you must understand the meaning of the word "attempt" within this context. A person is guilty of an attempt to kill (inflict serious bodily harm) if (he/she) purposely commits an act which constitutes a substantial step toward the commission of a killing (the infliction of serious bodily harm).23
If you find that the State has not proven beyond a reasonable doubt any element of the crime of robbery as I have defined that crime to you, then you must find the defendant not guilty.
If you find that the State has proven beyond a reasonable doubt that the defendant committed the crime of robbery as I have defined that crime to you, but if you find that the State has failed to prove beyond a reasonable doubt as to whether:
(Charge appropriate)
a. defendant purposely attempted to kill .
b. defendant purposely inflicted or attempted to inflict serious bodily injury upon
at the time of the commission of the robbery, then you must find the defendant guilty of robbery in the second degree.
If you find that the State has proven beyond a reasonable doubt that the defendant while in the course of committing a theft:
(Charge appropriate)
a. purposely attempted to kill
or
b. purposely inflicted or attempted to inflict serious bodily injury upon
then you must find the defendant guilty of robbery in the first degree.
22 See N.J.S.A. 2C:11-1b.
23 For alternative definitions of attempt, see N.J.S.A. 2C:5-1.