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N.J.S.A. 2C:15-1(a)(1) (count one), and fourth-degree possession of a knife under circumstances not manifestly
appropriate for lawful use, N.J.S.A. 2C:39-5(d) (count six). Defendant was acquitted of counts two through five of
Indictment No. 06-01-00003: first-degree robbery by threatening another with bodily injury or purposely putting
another in fear of immediate bodily injury while armed with or threatening the immediate use of a deadly weapon,
N.J.S.A. 2C:15-1(a)(2) (count two); second-degree aggravated assault by attempting to cause serious bodily injury,
N.J.S.A. 2C:12-1(b)(1) (count three); third-degree aggravated assault by attempting to cause bodily injury with a
knife, N.J.S.A. 2C:12-1(b)(2) (count four); and third-degree possession of a knife with intent to use it unlawfully,
N.J.S.A. 2C:39-4(d) (count five). While the jury was deliberating, defendant pled guilty to the single count of
Indictment No. 06-01-00002, fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(a). ">
400 N.J.Super. 608"> Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)
The status of this decision is published
Original Wordprocessor Version
This case can also be found at 400 N.J.Super. 608, 948 A.2d 735.
(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1049-06T41049-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARIBEL ROLON a/k/a RODRIGUEZ,
Defendant-Appellant.
Submitted January 28, 2008 - Decided
Before Judges Lintner, Graves and Sabatino.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment Nos.
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06-01-00002 and 06-01-00003.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Donald M. Spector,
Designated Counsel, of counsel and on the
brief).
Theodore J. Romankow, Union County Prosecutor,
attorney for respondent (Jason Gareis,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
GRAVES, J.A.D.
On June 1, 2006, following a jury trial, defendant Maribel Rolon was convicted of first-degree robbery by knowingly
using force upon another while armed with a deadly weapon or threatening the immediate use of a deadly
weapon, N.J.S.A. 2C:43-7.2. She was also sentenced to a concurrent eighteen-month prison term for fourth-degree
possession of a weapon by a convicted person.
On appeal, defendant presents the following arguments:
POINT I
THE TRIAL COURT ERRED IN CHARGING THE JURY THAT DEFENDANT'S INTENT WITH
RESPECT TO THE USE OF A WEAPON IS IRRELEVANT FOR DETERMINING WHETHER
DEFENDANT IS ARMED WITH A DEADLY WEAPON FOR PURPOSES OF
FIRST[-]DEGREE ROBBERY; THEREFORE, DEFENDANT WAS DEPRIVED OF DUE PROCESS
OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947)
ART. I, PARS. 1, 9, 10.
POINT II
THE TRIAL COURT'S FAILURE TO EXPLAIN
FIRST[-]DEGREE ROBBERY WITH REFERENCE TO THE CONFLICTING FACTS OF THE CASE
AND INCLUSION OF ELEMENTS THAT SHOULD NOT HAVE BEEN CHARGED, DEPRIVED
DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST.
AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
POINT III
THE INCONSISTENT VERDICTS ON THE TWO COUNTS OF FIRST[-]DEGREE ROBBERY AND
POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE CLEARLY DEMONSTRATE
THAT THE JURY WAS MISLED BY THE JUDGE'S ERRORS IN THE INSTRUCTIONS ON FIRST[-
]DEGREE ROBBERY; AS A RESULT, DEFENDANT WAS DEPRIVED OF DUE PROCESS OF LAW
AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I,
PARS. 1, 9, 10.
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POINT IV
THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE DEFENDANT THE RIGHT
TO A FAIR TRIAL WHEN THE COURT RULED THAT DEFENDANT'S TWO REMOTE PRIOR
CONVICTIONS WOULD BE ADMISSIBLE IF SHE TESTIFIED. U.S. CONST. AMEND. XIV; N.J.
CONST. (1947) ART. I, PARS. 1, 9, 10; N.J.R.E. 609.
POINT V
GIVEN THE CIRCUMSTANCES OF THE OFFENSE AND THE REMOTENESS OF MS. ROLON'S
NEW JERSEY STATE CONVICTIONS, THE TWELVE[-]YEAR SENTENCE, SUBJECT TO THE NO
EARLY RELEASE ACT, WAS EXCESSIVE AND VIOLATES THE PROVISIONS OF THE NEW
JERSEY CODE OF CRIMINAL JUSTICE.
After reviewing the record in light of these contentions, we conclude the court's response to a request from
the jury for a definition of "armed" was fatally defective. Accordingly, defendant's robbery conviction must be
reversed and remanded for a new trial.
Shortly before 9:00 a.m. on Monday, September 12, 2005, defendant entered Kalamio restaurant located at
847 Second Avenue in the City of Elizabeth. Defendant testified she went into the restaurant to get something to
eat. The restaurant was empty, however, and no one was present to serve her. According to defendant: "I went . . .
around the counter area and I said hello but no one came out and there was an open cabinet door . . .                      . And I saw a
purse, I went in the purse. . .                                                                                            . [to see] if there was money." As defendant was removing money from the purse, Anna
Padilla, owner of the restaurant, emerged from the kitchen. According to Padilla, when defendant saw her,
defendant "tried to escape," but Padilla "grab[bed] her to take the money [a]way from her."
Padilla testified that during the ensuing struggle, which lasted for "five [or] ten minutes," defendant pulled
her necklace off. According to Padilla, she grabbed defendant by her wrists because defendant had Padilla's
necklace "in one hand and the money in the other hand." Padilla testified that after letting go of the necklace and
money, defendant "took out her knife." Padilla said she was "scared" because defendant "wanted to hurt me like this
with the knife." At trial, Padilla identified a folding knife recovered from the restaurant floor as the knife defendant
was holding during the struggle.
Defendant's version of the struggle with Padilla was entirely different. According to defendant, after she took
the money from Padilla's purse, Padilla grabbed her and would not let go. Defendant denied taking Padilla's
necklace, and she denied punching or hitting her. Defendant testified she was trying to leave, and she kept telling
Padilla "to let me go, to let me go, and I was just waving my hands." Defendant admitted she had a knife in the front
pocket of her jeans, which fell out during the struggle, but she said the blade was not open before the knife hit the
floor. Defendant also testified she never held the knife in her hand, never threatened Padilla with the knife, and
never intended to use the knife against Padilla.
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Maria Ramirez, a restaurant employee who had been working in the kitchen, observed part of the struggle
and telephoned the police. Ramirez testified she "saw both of them fighting," and she saw defendant holding
"Anna's chain," but she never witnessed defendant with a knife in her hand.
When Detective Clarence Cunningham of the Elizabeth Police Department arrived on the scene, he
apprehended defendant as she was "running out of the store, a restaurant type of a store." According to
Cunningham, "[t]he restaurant was in disarray . . . the tables were flipped over, there was money on the floor, the
owner's pocketbook was thrown on the floor, tables and chairs were thrown on the floor." Cunningham recovered a
"folding knife" from the restaurant floor and, when asked if "the blade was open or shut," he testified the blade was
open.
Following the testimony of Padilla, Ramirez, Detective Cunningham, and defendant, the court charged the
jury, in pertinent part, as follows:
Now a section of our statute provides that robbery is a crime of the second
degree, except that it becomes a crime and is a crime of the first degree if the robber is
armed with or uses or threatens immediate use of a deadly weapon.
Now the words armed with [are] distinguishable from mere possession. Armed
with means possessing an implement in a way that makes it available for use as a
weapon.
So in this case, the defendant -- it's alleged the defendant was armed with [a]
knife, a deadly weapon in the course -- while in the course of committing the robbery.
In order for you to determine the answer to the question, in this question, you must
understand the meaning of the term deadly weapon.
A deadly weapon is any firearm or other weapon, device, instrument, material or
substance which in the manner it is used . . . or is intended to be used, is known to be
capable of producing serious bodily injury or which in the manner it is fashioned would
lead the victim to reasonably believe it could be capable of producing death or serious
bodily injury.
In this case the State alleges that the defendant was armed with a knife and that
is an item that was produced into evidence. You must determine if this object qualifies
as a deadly weapon and if the State has proven beyond a reasonable doubt that the
defendant was in the course of committing a robbery.
After the jury began deliberating, it sent the court the following note: "Definition of armed?" Prior to
responding to the jury's inquiry, the court advised counsel:
I intend to read to the jury the information as contained in the case of [State v. Clark,
352 N.J. Super. 130 (App. Div.), certif. denied, 174 N.J. 545 (2002)]. The term is not
defined by the code but it's distinguishable from mere possession.
"Armed means possessing an implement in a way that makes it available for use
as a weapon. The defendant's intent with respect to the object is irrelevant."
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That's the [Clark case], it was decided in 2002, and it seems to be the most
recent statement of armed, so that's what I'll tell the jury.
Defendant's attorney objected to the proposed charge, arguing mere possession of the knife would not
warrant a conviction for first-degree robbery without "some sort of use of that weapon or display [of] that weapon."
Nevertheless, relying on Clark, the court charged the jury as follows:
I have some good news and bad news - the code does not define the word armed.
However, the cases distinguish armed from mere possession. It's different than mere
possession and the case law seems to indicate that being armed means possessing an
implement in a way that makes it available for use as a weapon. The defendant's intent
with respect to the object is irrelevant. So it's something more than possession, it
means possessing an implement in a way that makes it available for use as a weapon. I
hope that helps you.
[(Emphasis added).]
This language, which is notably absent from our decision in Clark, may have been taken from Cannel, New Jersey
Criminal Code Annotated, comment 6 on N.J.S.A. 2C:15-1 (2005) (emphasis added), which states: "[Clark] appears to
find that being armed means possessing an implement in a way that makes it available for use as a weapon; the
defendant's intent with respect to the object is irrelevant."
The issue in Clark, however, was whether defendant, who admitted to unlawfully entering premises with a folding
knife attached to the belt loop of his pants, could be convicted of second-degree "armed" burglary, N.J.S.A. 2C:18-2.
Clark, supra, 352 N.J. Super. at 137-38. Under the burglary statute, N.J.S.A. 2C:18-2, if a defendant "[i]s armed with or
displays what appear to be explosives or a deadly weapon," he may be convicted of second-degree armed burglary.
247 N.J. Super. 425, 428 (App. Div.), certif. denied, 126 N.J. 336 (1991), a case in which the defendant was convicted
of second-degree armed burglary after entering a residence and stealing, among other things, seven firearms. The
defendant argued the firearms were "proceeds of the theft and that he was not 'armed' because he did not use or
intend to use firearms in connection with the offense." Id. at 429. The Merritt court disagreed and upheld
defendant's burglary conviction, stating that an individual "may be found to have been armed, without showing
that he actually used or intended to use the weapon, so long as he had immediate access to the weapon during the
offense." Id. at 430.
In contrast to Clark and Merritt, which involved the armed burglary statute, N.J.S.A. 2C:18-2, the present appeal
involves defendant's conviction for first-degree armed robbery. The circumstances here are therefore more closely
akin to our decisions in the two robbery cases of State v. Riley, 306 N.J. Super. 141 (App. Div. 1997), and State v.
Brown, 325 N.J. Super. 447 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000). In Riley, supra, 306 N.J. Super. at 145-
46, we affirmed defendant's conviction for second-degree robbery, but we found the evidence was insufficient to
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convict defendant of first-degree robbery because "[t]here was no evidence that defendant used or intended to use
his pocket knife during the course of the robbery. Nor did the victim himself have knowledge of defendant's
possession of the knife." Under those circumstances, we concluded defendant was not armed with a deadly weapon
"simply by reason of the pocket knife having been on his person during the course of the robbery." Id. at 146. In
distinguishing Merritt, the Riley court stated as follows:
We reasoned [in Merritt] that mere possession of those firearms met the statutory
element of 221 N.J. Super. 66, 70 (App. Div. 1987) (holding that "a folding knife with a
four-inch blade" was "susceptible to both lawful and unlawful uses, [therefore] its status
as a weapon whose possession is capable of subjecting its possessor to criminal liability
is entirely dependent on the circumstances attending the possession"); see also State v.
Lee, 96 N.J. 156, 162 (1984) (explaining that "surrounding circumstances" determine
whether the purpose of an actor was to use an otherwise innocent object "as a
weapon") (internal quotation omitted).
We relied upon the holding in Riley in the factually similar case of State v. Brown. In Brown, supra, 325 N.J.
Super. at 450, defendant struck an elderly woman in her back as she was walking home from a Pathmark
supermarket, and he took her shopping bag and purse after she fell to the ground. When defendant was
apprehended a short time later, he had "an ordinary kitchen knife with a five-inch long blade" in his right front
pocket. Ibid. Although he was subsequently found not guilty of first-degree robbery, defendant argued his motion
for acquittal of the first-degree charge should have been granted and we agreed:
As in Riley, the knife was neither held by defendant nor seen by the victim. The only
evidence was that [the knife] was immediately available to defendant during the
robbery. While that establishes that defendant was armed, [Merritt, supra, 247 N.J.
Super. at 429-30], it is not sufficient evidence that the weapon was a "deadly weapon"
as defined by 187 N.J. 91, 98 (2006) (internal citations omitted). Moreover, both Riley
and Brown stand for the proposition that in a robbery case, where the potential
weapon is not per se a deadly weapon, like a firearm, a defendant cannot be
considered to have been "armed with a deadly weapon" unless he had immediate
access to the potential weapon as well as an intent to use it in a way that is "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." 151 N.J. 41, 54 (1997). In this case, the jury was told: "Armed means
possessing an implement [the knife] in a way that makes it available for use as a
weapon. The defendant's intent with respect to the object is irrelevant." This instruction
was inadequate because it was incorrect. It was incorrect because the jury was told it
could convict defendant of first-degree robbery even if it believed defendant never
actually used, threatened to use, or intended to use the knife. Consequently,
defendant's first-degree robbery conviction must be reversed. See Lopez, supra, 187
N.J. at 101 (stating that "erroneous instructions on material issues are presumed to be
reversible error") (internal quotation omitted).
We therefore reverse defendant's first-degree robbery conviction and remand that charge for a new trial. In light of
our disposition, it is unnecessary to address defendant's remaining contentions.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
The record does not reveal the gestures Padilla apparently made simultaneously with this testimony.
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(continued)
(continued)
14
A-1049-06T4
APPROVED FOR PUBLICATION
June 20, 2008
APPELLATE DIVISION
June 20, 2008
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