(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued May 1, 2000 -- Decided June 22, 2000
Coleman, J., writing for a unanimous Court.
This appeal resolves the question of whether the crime of attempted robbery exists under the laws of this
State and, if so, whether a vacated judgment of first-degree robbery can be molded into a conviction for a lesser
included offense of attempted robbery.
On January 25, 1994, detectives investigating several robberies of fast-food restaurants observed the
defendant pacing in front of and peering into a Roy Rogers restaurant just prior to closing time. The officers
watched the defendant step into the building and cover his face with a scarf and hat leaving only his eyes visible.
Following defendant into the restaurant, the officers saw him approach an employee at the counter and place his hand
in the right pocket of his coat. They grabbed defendant and removed a loaded revolver from his pocket. No
employees of the restaurant testified at trial that they were verbally threatened or saw the gun prior to the actions
taken by the officers. Defendant testified that he was set up by the officers and a friend who was also present at the
restaurant, and did not intend to rob the restaurant. Based on defendant's testimony of a “set up,” the trial judge
permitted predisposition evidence of defendant's prior convictions in New York for attempted robbery and robbery,
and charged the jury on entrapment. The jury found defendant guilty of first-degree robbery.
On appeal, the Appellate Division ruled that the elements of robbery were not proven and New Jersey did
not recognize a crime of attempted robbery. The State's evidence was insufficient to prove robbery because
defendant never spoke to the employees and never indicated that he possessed a gun. The court, being of the view
that attempted robbery is not a cognizable offense in New Jersey, did not reach the issue of whether the vacated
robbery conviction could be molded into a conviction for the lesser-included offense of attempted robbery. Finally,
the court declined to mold a conviction for attempted theft, finding that the trial court erred in charging entrapment
and admitting evidence of prior convictions. The court found that the prior-convictions evidence had the potential to
influence the jury's decision on the charges of robbery and attempted theft. The court remanded for a new trial on
attempted theft.
The Supreme Court granted the State's petition for certification.
HELD: Attempted robbery is a crime under New Jersey's Code of Criminal Justice, and a robbery conviction can be
molded into a lesser-included inchoate crime of criminal attempt to commit robbery.
1. The crime of theft or attempted theft is a prerequisite for a robbery conviction. Theft is defined as the unlawful
taking or exercise of unlawful control over the property of another with the purpose of depriving him thereof.
N.J.S.A. 2C:20-3. The crime of robbery, pursuant to N.J.S.A. 2C:15-1, occurs when, “in the course of committing a
theft,” a person (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 (3) commits or threatens immediately to commit any crime of the first or
second degree.” This provision of the Code further states that theft includes the attempt to commit theft. Criminal
attempt to commit any crime, pursuant to N.J.S.A. 2C:5-1a, occurs where a person “purposely does or omits to do
anything which ... is an act or omission constituting a substantial step in a course of conduct planned to culminate in
his commission of the crime.” A defendant, then, can be convicted of robbery despite failure to complete the crime
where a substantial step is purposefully taken to exercise unlawful control over another's property while threatening
or purposely placing another in fear of immediate bodily injury. Here, the Appellate Division found that defendant
never threatened anyone or placed anyone in fear of bodily injury, therefore the robbery conviction was not
supported by the evidence. (pp. 9-13)
2. The focus of “threat” to bodily injury in N.J.S.A. 2C:15-1a is not on the victim, but on the conduct or purposeful
behavior of the accused. As such, it is proper to apply the law of attempt to threats even though, in some instances,
the accused's “substantial step” in the commission of the threat will be sufficiently corroborative of an actual threat
to meet the elements of the crime of robbery. The drafters of New Jersey's Code and the Model Penal Code
contemplated an attempted robbery charge where the facts support it, as in this case, and other jurisdictions have
acknowledged the existence of the crime of attempted robbery on similar facts. (pp. 13-21)
3. The Code did not change the common law that permitted conviction of a lesser-included offense not expressly
charged in the indictment. The trial court possesses the power to mold a conviction into a lesser-included offense
even if the court did not instruct the jury on that offense where the defendant had his day in court, the more serious
offense includes all elements of the lesser-included offense, and guilt as to the lesser-included offense is implicit in
the jury's verdict. (pp. 21-25)
4. In this case, retrial of the defendant on charges of attempted robbery is proper and will not offend double
jeopardy considerations. No element that the State must prove to obtain a conviction for attempted robbery or
attempted theft, both of which are lesser-included offenses of robbery, was rejected by the jury. Nor can defendant
contend that he was unaware of a potential conviction for attempted robbery in light of its express mention in the
criminal complaint, arguments during the probable cause hearing, and arguments made in the context of a pretrial
motion. The trial court's error in permitting the use of other-crimes evidence mandates a retrial in light of the
resulting prejudice to the defendant. As such, double jeopardy principles are not offended by ordering a retrial of the
lesser-included offenses to robbery. (pp. 25-30)
The judgment of the Appellate Division is REVERSED insofar as it precluded a retrial for attempted
robbery, is otherwise AFFIRMED, and the matter is remanded for a new trial on attempted robbery and attempted
theft.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN, LONG, VERNIERO, and
LaVECCHIA join in JUSTICE COLEMAN's opinion.
SUPREME COURT OF NEW JERSEY
A-
43 September Term 1999
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
QUDDOOS FARRAD, a/k/a IKE
BOXDALE,
Defendant-Respondent.
Argued May 1, 2000-- Decided June 22, 2000
On certification to the Superior Court,
Appellate Division.
Jennifer L. Gottschalk, Deputy Attorney
General, argued the cause for appellant
(John J. Farmer, Jr., Attorney General of
New Jersey, attorney; Ms. Gottschalk and
Robert E. Bonpietro, Deputy Attorney
General, on the briefs).
Jodi L. Ferguson, Assistant Deputy Public
Defender, argued the cause for respondent
(Ivelisse Torres, Public Defender,
attorney).
The opinion of the Court was delivered by
COLEMAN, J.
The critical issue in this appeal is whether the crime of
attempted robbery exists under the New Jersey Code of Criminal
Justice, N.J.S.A. 2C:1-1 to 104-9 (Code). A jury found defendant
guilty of first-degree robbery. The Appellate Division vacated
the robbery conviction, finding the State failed to establish
either the use of force or the threat of immediate bodily injury,
proof of which is an essential element of the crime of robbery.
The panel declined to mold the verdict to enter a conviction for
attempted robbery because it was of the view that such an offense
is not cognizable under the Code. Even if attempted robbery had
been recognized as an inchoate crime under the Code, the panel
would not have molded the verdict to reflect a conviction for
that offense because it found that the trial court had erred in
permitting the State to inquire into the details of defendant's
prior convictions. We conclude that attempted robbery is an
offense contemplated by the Code and remand the matter for a
retrial on attempted robbery.
On January 25, 1994, at 10:45 p.m., two plain-clothed police officers, Detective Joseph Carroll and Lieutenant Michael Mordaga, observed defendant standing in front of a Roy Rogers restaurant that was scheduled to close at ll:00 p.m. The officers were investigating a number of recent fast-food restaurant hold-ups, all occurring when the target restaurant was about to close for the night. Defendant was wearing a three quarter length coat, a scarf and a hat, and according to the officers, was walking back and forth in front of the restaurant, peering inside. The officers observed defendant walk around the corner of the building, enter a vestibule extension of the building, and cover his face with his scarf and hat so that only his eyes were visible. As defendant entered the restaurant, the officers followed.
Present in the restaurant were a patron, MacArthur Lee, Jr. (Lee), and a cashier, Camilli Rose (Rose). Lee and Rose were having a conversation. The officers observed defendant walk toward the restaurant counter and place his hand into his right coat pocket. The officers immediately grabbed defendant, and Lieutenant Mordaga removed a loaded revolver from defendant's right pocket. Detective Carroll patted down Lee, and permitted him to leave after determining there was no reason to believe he was involved.
At trial, Detective Carroll testified that defendant, after having been given warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966), confessed that he found the gun behind the restaurant. An expert in the field of ballistics and firearms testified that the gun was operable and three of the bullets were hollow points.
Rose testified that at around 10:45 p.m. Lee asked to see an employee who was not present, and then asked to see the manager. Rose called for the manager, and sometime during her two to three minute conversation with Lee, defendant entered the premises. Rose stated that she paid no special attention to defendant when he entered, thinking Lee and defendant were together. Rose observed the officers enter the restaurant, wait for “a little bit,” and then walk behind defendant and remove a gun. According to Rose, the manager entered the front of the restaurant after the gun had been removed. Rose testified that she never saw defendant remove the gun from his pocket and that he never said or did anything that threatened anybody. However, Rose was “shaken up” by seeing the gun the police removed from defendant's coat.
Thai Minter, the manager, testified that at around 10:45 p.m. he was in an office in the back of the restaurant preparing to close when Rose called him. When he entered the front of the restaurant, he saw defendant. Minter testified that he asked defendant if he needed help, at which point Minter saw defendant reach into his pocket and begin to pull something out. Minter then noticed the detectives and heard one of them say “he's going for his gun.” Minter watched the detectives grab defendant and the gun. Minter claims that when the detectives grabbed defendant, the gun was already out of his pocket.
Defendant testified that he and Lee went to the restaurant together. According to defendant, Lee needed to “check on this job,” and handed the gun to defendant. Defendant claimed that he argued with Lee about the gun, but eventually placed it in his pocket. Defendant testified that neither he nor Lee discussed robbing the restaurant. Defendant denied walking around the restaurant or peering through the windows before entering. Defendant admitted that he wrapped himself with his scarf before entering the restaurant, claiming that he did so to keep warm and because he has arthritis. He stated that he entered the restaurant behind Lee, and waited about five minutes for Lee to finish his conversation with Rose. At that point, according to defendant, the two detectives grabbed him from behind. Detective Mordaga felt his pockets, yelled “gun,” and pulled out the gun.
Defendant claimed that he did not have his hand in his pocket, and that he never attempted to remove the gun or to rob the restaurant. Defendant testified that after Detective Mordaga removed the gun, he observed Lee and the officers laughing at him, which caused him to believe that he was set up.
Because defendant testified that he thought Lee and the police set him up, the trial court decided that it would charge the jury regarding entrapment. Based on that ruling, the trial court permitted the prosecutor to use defendant's prior unsanitized New York convictions for attempted robbery and robbery during cross-examination to prove predisposition. The jury was given an instruction limiting the use of the other crime evidence to rebut the defense of entrapment, not as “proof that he committed the offense for which he's being tried.”
At the conclusion of the State's case, defendant moved for judgment of acquittal on the robbery count, noting that the State had failed to prove that anyone was threatened or placed in fear. The trial court denied the motion, concluding that the State was not obligated to prove actual fear by a victim, but instead was required to prove only that defendant intended to rob.
The jury found defendant guilty on all counts. His motion for judgment notwithstanding the verdict was denied. After denying the State's motion for an extended term, defendant was sentenced to twenty years with a ten-year period of parole ineligibility for first-degree robbery. Concurrent terms were imposed on the remaining unmerged counts.
In an unpublished opinion, the Appellate Division found three prejudicial errors. First, the State conceded that possession of hollow point bullets is a fourth-degree offense rather than a third-degree offense as stated in the judgment of conviction. The State agreed that a remand was required to correct that sentence.
Second, the Appellate Division ruled that the State presented insufficient evidence to convict defendant of robbery. The panel noted that although the State presented sufficient evidence from which a jury could infer that defendant was attempting to commit a theft, “[t]he evidence . . . is uncontroverted that while inside the restaurant, defendant never spoke to Rose, had any eye contact with her, or in any way indicated that he had a loaded gun and was about to commit a theft.” The panel concluded that “the trial judge should have granted defendant's motion for a judgment of acquittal” as to the robbery charge.
The State argued, in the alternative, that if the appellate panel vacated the first-degree robbery conviction, the verdict should be molded to reflect a conviction for the lesser-included offense of second-degree attempted robbery. The panel rejected that argument and concluded that attempted robbery, as a matter of law, is not a cognizable offense under the Code, citing State v. Carlos, 187 N.J. Super. 406 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983); State v. Schenck, 186 N.J. Super. 236 (Law Div. 1982).
Third, the panel refused to mold the verdict to reflect a conviction for attempted theft because the trial court erred in charging entrapment, and as a result the State was improperly permitted to inquire into the nature of defendant's prior convictions. That error was compounded because defendant withdrew his defense of entrapment and “there was insufficient evidence in the record to establish either statutory or due process entrapment.” According to the panel, permitting the jury to hear the details of the prior convictions “had the capacity to influence the jury's assessment of the merits” of the present charges of robbery and attempted theft. The panel found that because defendant admitted to illegal weapons possession, the other-crimes evidence did not have any prejudicial impact upon those convictions. The court remanded for a new trial on attempted theft and for resentencing for possession of hollow point bullets. We granted the State's petition for certification. 162 N.J. 488 (1999).
The State contends that because defendant had the intent and took substantial steps to commit a theft and threaten the cashier with the gun, defendant should be retried for attempted robbery. The State claims that it is illogical that “the fortuitous intervention of law enforcement . . . converted a first-degree robbery, and perhaps worse, into a third-degree attempted theft.”
The State argues that the cases cited by the appellate panel, State v. Carlos, supra, and State v. Schenck, supra, are not on point. According to the State, both cases recognized that because common law attempted robbery is incorporated into N.J.S.A. 2C:15-1, if the sole uncompleted element of the robbery is theft, the crime committed under the Code is robbery because an attempted theft is sufficient. The State argues that “a[n] attempted robbery is not entirely subsumed in the robbery statute when a defendant, as here, takes a substantial step toward completing one of the other elements, e.g., threatening another with, or placing another in fear of, bodily injury.”
The State also contends that a different Appellate Division panel in State v. Gonzalez, 318 N.J. Super. 527, certif. denied, 161 N.J. 148 (1999), seems to have presumed the existence of the offense of attempted robbery. Lastly, the State argues that “[g]ood police work . . . should not be discouraged by the prospect of convicting this defendant of a mere third-degree attempted theft.”
Robbery is a first- or second-degree offense under the Code. The relevant sections of the robbery statute, N.J.S.A. 2C:15-1, read:
a. Robbery defined. 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
(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.
In Carlos, supra, the court observed that the crime of
robbery consists of the following elements:
(1) theft or attempted theft; (2)
intimidating or assaultive conduct consisting
of (a) inflicting bodily injury upon another
or (b) threatening another with or purposely
putting him in fear of immediate bodily
injury or (c) committing or threatening
immediately to commit any crime of the first
or second degree [or (d) using force upon
another person]; (3) the intimidating or
assaultive conduct must have occurred during
the theft or attempted theft or in immediate
flight after the theft or attempted theft,
and (4) defendant must have acted purposely.
Theft is defined, generally, as the unlawful
taking or exercise of unlawful control over
property of another with purpose to deprive
him thereof. . . . N.J.S.A. 2C:20-3.
Attempted theft is defined by combining the
foregoing definition of theft with N.J.S.A.
2C:5-1a. It is an abortive effort to
perpetrate a theft.
[Carlos, supra, 187 N.J. Super. at 412
(footnote and internal citation omitted)].
A prerequisite for a robbery conviction is a theft or
attempted theft. See N.J.S.A. 2C:20-3a. One can be found guilty
of an “attempt” to commit a particular crime if
acting with the kind of culpability otherwise
required for commission of the crime, he:
(3) Purposely does or omits to do
anything which, under the circumstances as a
reasonable person would believe them to be,
is an act or omission constituting a
substantial step in a course of conduct
planned to culminate in his commission of the
crime.
[N.J.S.A. 2C:5-1a].
“Attempt” can be easily defined. The difficulty lies in
distinguishing between mere preparation and the substantial step
requirement of an attempt. As noted in the 1971 New Jersey Penal
Code Commentary, Vol. II, at 117, New Jersey Penal Code, Volume
II: Commentary, Final Report of the New Jersey Criminal Law
Revision Commission 117 (1971) (hereinafter Commentary), the
Model Penal Code's
approach to this problem is to set forth two
requirements which in addition to the
requisite criminal purpose, distinguish
attempt from preparation: (1) The act must be
'a substantial step in the course of conduct'
planned to accomplish the criminal result,
and (2) the act must be 'strongly
corroborative' of criminal purpose in order
for it to constitute such a substantial step.
Thus, the “substantial step” requirement in the “attempt”
statute, N.J.S.A. 2C:5-1a(3), is satisfied if a defendant acts in
a way that is “strongly corroborative of the 'firmness of his
purpose'” to carry out the crime. State v. Fornino,
223 N.J.
Super. 531, 538 (App. Div.), certif. denied,
111 N.J. 570, cert.
denied,
488 U.S. 859,
109 S. Ct. 152,
102 L. Ed.2d 123 (1988)
(quoting Commentary, supra, at 117-18); N.J.S.A. 2C:5-1b.
Based on the foregoing principles, a defendant can be
convicted of robbery, even if the theft is unsuccessful, if he or
she (1) purposely takes a substantial step (2) to exercise
unlawful control over the property of another (3) while
threatening another with, or purposely placing another in fear
of, immediate bodily injury. See State v. Sein,
124 N.J. 209,
215 (1991).
In the present case, the Appellate Division ruled that the
State could not convict defendant of robbery because the
aggravating circumstances were not present, that is, defendant
never threatened anyone or placed anyone in fear of bodily
injury. The State now seeks to retry defendant for attempted
robbery. Under the State's theory, defendant committed attempted
robbery because all of the elements of such an offense were
established, namely that in the course of (1) purposely taking a
substantial step (2) to exercise unlawful control over the
property of another, defendant (3) purposely took a substantial
step (4) to threaten another with, or place another in fear of,
immediate bodily injury.
We now focus on whether attempted robbery is a crime under the Code. The analysis must begin with an overview of what the crime of robbery embraces. We have previously acknowledged that N.J.S.A. 2C:15-1a “'manifests a legislative intent to adopt a more expansive concept of robbery'” than New Jersey's common law crime of robbery. State v. Mirault, 92 N.J. 492, 496 (1983) (quoting Carlos, supra, 187 N.J. Super. at 414). Robbery under the Code differs from previous versions of robbery in a number of ways. First, N.J.S.A. 2C:15-1a authorizes prosecution for robbery when an injury or threat was inflicted upon a victim other than the custodian of the property. Id. at 496. Second, it reaches acts committed during an escape from the theft or attempted theft. Ibid. Third, it eliminates the element of asportation. Ibid. In sum, N.J.S.A. 2C:15-1a broadened the robbery statute and “addresses the criminal who is prone to use violence.” Id. at 499.
The aggravating circumstances required for a robbery can be established if a defendant “[t]hreatens another with or purposely puts him in fear of immediate bodily injury.” N.J.S.A. 2C:15 1a(2). A would-be robber comes within the statutory language if “he or she only threatens another with bodily injury regardless of its seriousness.” State v. Sewell, 127 N.J. 133, 147 (1992). “[N]o special words and/or conduct are required to make out a threat . . . but the totality of the circumstances presented must be considered.” State v. Smalls, 310 N.J. Super. 285, 292 (App. Div. 1998). The focus is on the conduct of the accused, rather than on the “characteristics of the victim and his or her actions.” Sein, supra, 124 N.J. at 217. The Commentaries to the Model Penal Code, whose robbery statute is almost identical to New Jersey's, notes that “[t]he term 'threaten' implies purposeful behavior.” Model Penal Code & Commentaries, Part II § 222.1 at 114.
We reject defendant's assertion that it is improper to apply the law of attempt to threats. An “attempt” must be purposive. State v. Rhett, 127 N.J. 3, 6-7 (1992). “[O]ne cannot logically attempt to cause a particular result unless causing that result is one's 'conscious object' . . . .” State v. Robinson, 136 N.J. 476, 485 (1994) (citation omitted). Defendant argues that “by the time a defendant's actions are sufficiently corroborative of the purpose to constitute a substantial step, they are sufficiently corroborative of the purpose to constitute a threat.” The simple response to this is, not always.
Because a “threat” involves purposeful behavior and is to be viewed from the actor's perspective, defendant's theory could be valid in specific instances. However, the commentaries to the Model Penal Code expressly disagree with the assertion that one can never attempt to threaten. In the context of discussing what constitutes a “threat of serious bodily injury,” the commentators observe:
It should also be noted that there will be cases, appropriately reached by a charge of attempted robbery, where the actor does not actually harm anyone or even threaten harm. If, for example, the defendant is apprehended before he reaches his robbery victim and thus before he has actually engaged in threatening conduct, proof of his purpose to engage in such conduct will justify a conviction of attempted robbery if the standards . . . [of attempt] are met.”
[Model Penal Code & Commentaries, Part II,
supra, § 222.1 at 114-15 (emphasis added)].
Thus, we are persuaded that the Model Penal Code
commentators, and the drafters of our Code, contemplated an
attempted robbery charge under the facts of this case. At least
one jurisdiction with a similar robbery statute has charged a
defendant with attempted robbery under similar circumstances. In
Commonwealth v. Lauer,
18 Pa. D. & C.3d 157 (Pa. Comm. Pl. 1981),
aff'd,
474 A.2d 655 (Pa. Super. Ct. 1984), defendant was arrested
after being observed standing outside of a bank with a gun under
a long raincoat, while wearing a ski-mask, on a warm, sunny day.
Defendant was convicted of attempted robbery under 18 Pa. Cons.
Stat. Ann. § 3701, a robbery statute also modeled after the MPC.
Lauer, supra, 18 Pa. D. & C.
3d at 160; 18 Pa. Cons. Stat. Ann. §
3701 historical and statutory notes; see also Commonwealth v.
Fulton,
462 A.2d 265, 267 n.5 (Pa. Super. Ct. 1983) (disagreeing
with contention “that there is no such crime as attempted robbery
under Pennsylvania law”).
No reported decision in this State has directly addressed
the issue presented. The panel below cites two cases for the
proposition that there is no crime of attempted robbery under the
Code: State v. Schenck, supra, and State v. Carlos, supra. In
Schenck, defendant entered a bank and presented a note to the
teller reading “Give me your money. I have a gun.” Supra, 186
N.J. Super. at 237. Defendant was apprehended, charged and
convicted of “entering with intent to steal,” and a previous
version of robbery, N.J.S.A. 2A:141-1.
The Resentencing Panel in Schenck ruled that the crime of
“entering [a] public place with intent to steal” had been
eliminated by the crime of burglary, N.J.S.A. 2C:18-2. Id. at
238. The State argued that the offense equivalent to “entering a
public place with intent to steal” under the Code was not
burglary, but rather attempted robbery. The court disagreed,
ruling that because robbery is an aggravated form of theft,
one who attempts to commit a theft (with the
aggravating circumstances for a robbery being
present) is guilty _ if at all _ of robbery.
In other words he cannot be charged with
attempt (N.J.S.A. 2C:5-1) to attempt to
commit a theft (N.J.S.A. 2C:15-1(a)). The
State's argument that entering the bank with
intent to commit robbery is the equivalent of
an attempt to rob lacks rational
underpinning.
[Id. at 240].
Schenck observed that if a defendant attempts to commit a theft
and the aggravating circumstances are present, then defendant is
guilty of robbery, not attempted robbery. The present case
involves a slightly different scenario. Here, the State argues
that the aggravating circumstances were not present, but
defendant took substantial steps toward the use of force or a
threat of bodily injury. Therefore, Schenck is not instructive.
State v. Carlos, supra, is the other case cited by the
appellate panel. The issue in Carlos was “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.” Supra, 187 N.J. Super.
at 409. In Carlos, defendant entered a gas station, pulled out a
gun and demanded money from the four people present. Property
was taken only from two of the four. At trial, the court
instructed the jury that defendant could be convicted of robbery
if he threatens one victim while attempting to take property from
another. The court did not provide the jury with an instruction
concerning attempted theft. The jury convicted defendant of four
counts of robbery.
On appeal, the court noted the differences between N.J.S.A.
2C:15-1 and the prior crime of robbery, N.J.S.A. 2A:141-1. The
court observed that “N.J.S.A. 2C:15-1 includes the former crimes
of attempted robbery, N.J.S.A. 2A:141-1 and N.J.S.A. 2A:85-5;
assault with intent to rob, N.J.S.A. 2A:90-2; assault with a
dangerous weapon while demanding property, N.J.S.A. 2A:90-3, and
larceny of trade secrets from a person by force or violence,
N.J.S.A. 2A:119-5.4.” Id. at 414. However, “the common law
touchstones of the crime, to wit, larceny coupled with fear,
force, intimidation or assaultive behavior,” remained intact.
Ibid. Therefore, the Carlos defendant could not be convicted of
four counts of robbery unless “a theft or attempted theft” from
each person was proved. Ibid. Because the trial court did not
instruct on attempted theft and property was taken from only two
victims, two of the robbery convictions were vacated. Id. at
416-17.
Carlos does not stand for the proposition that there is no
crime of attempted robbery under the facts of this case. As in
Schenck, supra, Carlos observes that one who attempts a theft
with the statutory factors present is guilty of robbery. It also
sheds light on whether attempted robbery is a cognizable offense
when the theft and the threat are both uncompleted. The
statement acknowledging that the former crime of attempted
robbery has been incorporated into the Code offense of robbery
indicates the court's view that the Code did not abolish the
crime of attempted robbery. Id. at 414.
The State cites State v. Gonzalez, supra, for support. In
Gonzalez, defendant entered a building with the alleged intent to
rob the victim. A struggle ensued, at which point defendant shot
and killed the victim. Whether defendant actually robbed anyone,
however, was unclear. Regardless, a jury convicted defendant of
numerous crimes, including first-degree robbery and felony
murder. Gonzalez, supra, 318 N.J. Super. at 528.
The Appellate Division vacated the felony murder conviction
and remanded for a new trial based on the trial court's “failure
to charge the concept of attempt in the predicate offense of
robbery.” Id. at 536. Because the State could not prove that
property was taken from the victim, the panel noted that “[i]n
order to sustain the felony murder charge, the State was
therefore obliged to prove beyond a reasonable doubt that
defendant had attempted to commit robbery and in the course
thereof the victim was shot and died.” Id. at 533. Apparently,
the trial court never defined “attempt.” The panel remarked that
“[s]ince theft or attempted theft from the person is not a
predicate crime for felony murder, the failure to charge the
concept of attempt in the predicate offense of robbery . . .
constitutes plain error.” Id. at 536.
Gonzalez supports the State's claim that an attempted
robbery is cognizable under the Code. In Gonzalez, the defendant
shot the victim, and thus the aggravating factors were clearly
present. The only issue to be resolved was whether an attempted
theft occurred that would constitute a robbery under N.J.S.A.
2C:15-1. The Gonzalez court recognized that the felony murder
statute lists attempted robbery as a predicate felony sufficient
to satisfy the felony murder requirement. Ibid. That statute
provides that a “criminal homicide constitutes murder when . . .
the actor . . . is engaged in the commission of, or an attempt to
commit . . . robbery.” N.J.S.A. 2C:11-3a(3). Because felony
murder is an absolute liability offense, State v. Martin, 119
N.J. 2, 22 (1990), meaning that the defendant's mental state
regarding the homicide is not relevant, the Legislature's
selection of attempted robbery as a predicate felony for felony
murder compellingly establishes that attempted robbery is a crime
under the Code. Furthermore, the Model Penal Code suggests that
attempted robbery is an appropriate charge when a defendant is
apprehended before reaching the potential robbery victim. Hence,
we hold that attempted robbery is a crime under the Code.
Next, we address whether a first-degree robbery conviction that is vacated for lack of proof of aggravating circumstances, such as threats of violence, can nonetheless be molded into a conviction for a lesser-included offense of attempted robbery. That issue is important because unless the first-degree robbery conviction could be molded to enter a conviction for attempted robbery, in the absence of reversible trial error a second trial would be precluded by double jeopardy principles. The Appellate Division disposed of that issue as a matter of law and held that attempted robbery is not a crime under the Code.
The historical development of the lesser-included offense rule was aptly described by this Court in State v. Saulnier, 63 N.J. 199, 205-06 (1973):
The common law doctrine that a defendant may be found guilty of a lesser offense necessarily included in the greater offense charged in the indictment is well recognized in our State. See State v. Zelichowski, 52 N.J. 377, 383-85 (1968); State v. Midgeley, 15 N.J. 574, 579 (1954); State v. Staw, 97 N.J.L. 349, 350 (E. & A. 1922); cf. State v. Newman, 128 N.J.L. 82, 84 (Sup. Ct. 1942); State v. Johnson, 30 N.J.L. 185, 186-87 (Sup. Ct. 1862); see also IV and V Wharton's Criminal Law and Procedure, §§ 1799 and 2131 (1957). It was originally designed to aid the prosecution so that it would not fail entirely where some element of the greater offense was not established. See The People v. White, 22 Wend 167, 176 (1839); The People v. Jackson, 3 Hill 92 (1842). But it also redounded to the benefit of the defense since it enabled a finding of lesser consequence (cf. People v. Mussenden, 308 N.Y. 558, 127 N. Ed.2d 551, 553 (1955)) and precluded a later independent prosecution of the lesser offense as double jeopardy. See State v. Midgeley, supra, 15 N.J. at 579-80; State v. Di Giosia, 3 N.J. 413, 419 (1950). Any additional procedural inconvenience it entailed in the trial itself was outweighed by the resulting higher measure of justice and the increased efficiency in judicial administration. Cf. Knowlton, [Criminal Law and Procedure, 10 Rutgers L. Rev. 97, 98-99 (1955)].
The Model Penal Code embodies the common law doctrine with a delineation of its contours. Thus it provides that a defendant may be convicted of an included offense and specifies that an offense is to be viewed as included when: “(a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or (b) it consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or (c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.” Model Penal Code, Proposed Official Draft (1962), § 1.07(4). The Code also provides that “The Court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” Ibid. § 1.07(5). The proposed New Jersey Penal Code embodies the common law doctrine as thus delineated with, however, an express direction that the doctrine shall be applicable “whether or not the included offense is an indictable offense.” The New Jersey Penal Code, supra, Vol. I: Report and Penal Code § 2C:1-7(d). This quoted language was specifically designed towards superseding McGrath. See The New Jersey Penal Code, supra, Vol. II; Commentary, pp. 24-25.
The common law that permitted a conviction for a lesser
included offense not specifically charged in an indictment was
not changed by the Code.
Our Code, which was modeled after the Model Penal Code,
adopted the proposed Section 2C:1-7 as the lesser-included
offense doctrine and codified it at N.J.S.A. 2C:1-8. That
statute permits prosecutions for multiple offenses based on the
same conduct, but it precludes a conviction for more than one
offense, if “[o]ne offense is included in the other, as defined
in subsection d. of this section.” N.J.S.A. 2C:1-8a(1).
Pertinent to the present case, a lesser-included offense may
consist of “an attempt . . . to commit the offense charged or to
commit an offense otherwise included therein.” N.J.S.A. 2C:1
8d(2). Consequently, when the robbery statute, N.J.S.A. 2C:15-1,
the statutory rules for construing the Code, N.J.S.A. 2C:1-8, and
the meaning of criminal attempt are read together, we are
persuaded that the Legislature intended the inchoate crime of
attempted robbery to constitute a lesser-included offense of
robbery. The failure to complete the crime of robbery becomes
part of the proofs essential to establish an attempt to commit
robbery.
The fact that a trial court must wait until after a finding
of guilt has been made before deciding whether multiple
convictions are appropriate, N.J.S.A. 2C:1-8a(4), supports our
conclusion that the Code contemplates that verdicts may be
molded. Thus, a finding of first-degree robbery by a jury can be
molded to a lesser-included inchoate crime of criminal attempt to
commit robbery under the Code based on N.J.S.A. 2C:5-1a and
N.J.S.A. 2C:1-8d(2). Accord State v. Washington,
60 N.J. 170,
173 (1972) (reducing first-degree murder to second-degree
murder); State v. Mann,
244 N.J. Super. 622, 628-29 (App. Div.
1990) (reducing third-degree theft to a fourth-degree crime and
discussing inclusion of attempt as a lesser-included offense of
the completed crime); State v. Alexander,
215 N.J. Super. 522,
531 (App. Div. 1987) (discussing lesser-included offenses).
The authority to mold the verdict is also based on the trial
court's “power to enter a judgment of conviction for a lesser
included offense where the jury verdict necessarily constitutes a
finding that all the elements of the lesser included offense have
been established and where no prejudice to the defendant
results.” State v. Greenberg,
154 N.J. Super. 564, 567-68 (App.
Div. 1977), certif. denied,
75 N.J. 612 (1978). A guilty verdict
may be molded to convict on a lesser-included offense even if the
jury was not instructed on that offense if “(1) defendant has
been given his day in court, (2) all the elements of the lesser
included offense are contained in the more serious offense and
(3) defendant's guilt of the lesser included offense is implicit
in, and part of, the jury verdict.” State v. Hauser,
147 N.J.
Super. 221, 228 (App. Div.), certif. denied,
75 N.J. 27 (1977).
Whether the first-degree robbery conviction in this case should be molded into attempted robbery also requires a determination whether molding the verdict would, in view of the State's failure to prove the aggravating circumstances, violate double jeopardy principles. Also relevant to our ultimate disposition is whether the Appellate Division properly determined that the admission of other-crimes evidence deprived defendant of a fair trial on the robbery count.
Defendant argues that because attempted robbery was not submitted to the jury in the prior trial, he cannot now be tried on that offense. Based on our prior discussions, defendant's reliance on State v. Schmidt, 110 N.J. 258 (1988), is misplaced. In Schmidt, this Court ruled that because a conspiracy charge to a jury in a criminal case related only to the substantive crime of drug possession, defendant could not be found guilty of possession of the drugs on the basis of vicarious liability as an accomplice or as a conspirator. Id. at 265-66. The jury in Schmidt never found defendant vicariously guilty under the theory of conspiracy. Id. at 265.
In the present case, defendant was indicted for robbery and a jury convicted him of that offense. The jury was instructed that the State was obligated to prove that “it was the defendant's purpose to put another in fear of immediate bodily injury.” In rendering its verdict, the jury did not reject any element that the State would be required to prove to obtain a conviction, in a retrial, for attempted robbery or attempted theft, both lesser-included offenses of robbery. Furthermore, the evidence was sufficient to uphold a conviction for attempted robbery. There was sufficient evidence presented to the jury that defendant's purpose for being at the restaurant was to rob its cashier based on defendant's surveillance of the restaurant and then covering his face before entering it. He had walked to within a few feet of the cashier with a loaded gun in his pocket into which he inserted his hand. That evidence established more than mere preparation. It demonstrated a purpose to rob and substantial steps that were taken toward completion of the intended robbery but for the interruption by alert police officers.
A retrial for attempted robbery does not raise double jeopardy or due process concerns. First, a retrial for attempted robbery is mandated by the trial court's error in allowing the use of other-crimes evidence, not because of the insufficiency of the evidence. See Burks v. United States, 437 U.S. 1, 15-16, 98 S. Ct. 2141, 2149-50, 57 L. Ed.2d 1 (1978). Second, defendant was arrested on January 25, 1994, the day of the criminal episode. The initial complaint charged defendant with attempted robbery as follows:
Within the jurisdiction of this court [defendant did] attempt to commit the crime of robbery by entering the Roy Rogers family restaurant 193 Essex Street at closing time after adjusting his hat and scarf to partially conceal his face and while armed with a .38 caliber revolver in violation of New Jersey State Statute 2C:5-1; 2C:15-1.
Based on that formal complaint, a probable cause hearing was
conducted pursuant to Rule 3:4-3 on May 6, 1994. During that
hearing, counsel for defendant argued, among other things, that
“there was no probable cause that Mr. Farrad was attempting to
commit an armed robbery.” The prosecution, on the other hand,
argued that the proofs established probable cause to believe that
defendant “attempted robbery while armed” because the substantial
step requirement of N.J.S.A. 2C:5-1 had been satisfied. At the
conclusion of the probable cause hearing, the trial court found
there was probable cause that defendant possessed a handgun
without a permit and that he possessed the gun for an unlawful
purpose. However, the court found that probable cause did not
exist to believe that defendant attempted a robbery. The latter
finding has no legal impact because the purpose of the
preliminary hearing was solely to determine whether to bind
defendant over to await the action of the Grand Jury. R. 3:4
3(a); State v. Smith,
32 N.J. 501, 537 (1960).
In July 1994, a Bergen County Grand Jury indicted defendant
for first-degree robbery and four other charges. Defendant filed
a motion to dismiss the robbery count of the indictment because
there was no evidence that Rose, the Roy Rogers cashier, was
placed in fear and because another judge had found no probable
cause to believe that defendant had committed an attempted
robbery. The trial court denied the pretrial motion, concluding
that evidence presented to the Grand Jury established grounds for
a prima facie conviction for attempted robbery pursuant to
N.J.S.A. 2C:1-8d(2), N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1.
Because the court was of the view that an indictment should not
simply charge attempted robbery, it did not dismiss or amend the
robbery count.
By the time the jury trial was conducted in April 1996,
defendant was well aware of the debate over whether his conduct
constituted a robbery or an attempted robbery. Yet, he chose not
to request that the jury be instructed on attempted robbery as a
lesser-included offense. Whether that was a strategic decision
is neither clear nor relevant. What is important is the fact
that defendant has been aware of his exposure to a potential
conviction for attempted robbery since early 1994 when he was
served with the first formal complaint after being arrested on
January 25, 1994.
The finding by the Appellate Division that the State had
failed to prove that the cashier had been threatened or placed in
fear by defendant does not preclude a retrial for attempted
robbery. Although those aggravating circumstances are essential
to a robbery conviction, neither is required for an attempted
robbery. See Robinson, supra, 136 N.J. at 482-86 (analyzing the
law of “attempt”). Defendant's successful appeal of his robbery
conviction does not offend double jeopardy considerations because
the retrial will be for a lesser-included offense, a molded
conviction which simply could not be entered in light of the
improper use of other-crimes evidence. That prejudicial
evidentiary ruling necessitates a retrial, which would not offend
double jeopardy principles. See State v. Widmaier,
157 N.J. 475,
490-91 (1999).
Finally, the State no longer challenges the propriety of the Appellate Division's determination that the improper use of other-crime evidence deprived defendant of a fair trial. For the sake of completeness, however, that determination is clearly supported by the record.
We reverse the judgment of the Appellate Division that precluded a retrial for attempted robbery and affirm the judgment in all other respects. The matter is remanded to the Law Division for a new trial on attempted robbery and attempted theft.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN, LONG, VERNIERO, and LaVECCHIA join in JUSTICE COLEMAN's opinion.
NO. A-43 SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
QUDDOOS FARRAD, a/k/a IKE
BOXDALE,
Defendant-Respondent.
DECIDED June 22, 2000
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY