State v. Carlos

• Decision Date: 01 December 1982
• Citation: 455 A.2d 89,187 N.J.Super. 406
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Glenn M. CARLOS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 406

187 N.J.Super. 406

455 A.2d 89

STATE of New Jersey, Plaintiff-Respondent, v. Glenn M. CARLOS, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 4, 1982.

Decided Dec. 1, 1982.

Joseph P. Rem, Jr., designated counsel, Hackensack, for defendant-appellant (Joseph H. Rodriguez, Public Defender, Trenton, attorney).

Mary L. Cupo, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney; Mary L. Cupo of counsel and on the brief).

Glenn M. Carlos, appellant, filed a supplemental brief pro se.

Before Judges BISCHOFF, J.H. COLEMAN and GAULKIN.

The opinion of the court was delivered by

J.H. COLEMAN, J.A.D.

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 because each conviction must involve a separate theft or attempted theft unless there are special circumstances not here involved. The convictions on counts 3 and 4 are vacated.

A brief review of the procedural background and facts giving rise to this appeal 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 momentarily; 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 people. 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 N.J.S.A. 2C:15-1, to wit: Edward Merritt, count 1; John Pellegrino, count 2; Frances Pellegrino, count 3; and Dorothy Gourley, count 4. He was also convicted for violations of N.J.S.A. 2C:12-1 b(1): aggravated assault, Edward Merritt, count 5; and attempted aggravated assault, John Pellegrino, count 6. Under count 7 defendant was convicted for violating N.J.S.A. 2C:39-5 b, possession of a handgun without a permit.

Defendant was sentenced on count 1 to an extended custodial term of 30 years ( N.J.S.A. 2C:44-3 a and N.J.S.A. 2C:43-7 a) as a multiple offender. He is required to serve 15 years before being eligible for parole ( N.J.S.A. 2C:43-7 b). The judge recommended that defendant receive drug and alcohol rehabilitation while institutionalized. He was directed to pay $500 to the Violent Crimes Compensation Board pursuant to N.J.A.C. 2C:43-3.1. On counts 2, 3 and 4 defendant received a 20-year term on each which was made to run concurrent with count 1. A penalty of $25 was assessed on each of the three counts. As to count 5 defendant received a concurrent ten-year term and a $750 penalty. Under count 6 he received a concurrent ten-year term and a $25 penalty. Finally, the sentence on count 7 was a five-year concurrent term and a $25 penalty.

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, N.J.S.A. 2C:15-1, on that date read:

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 purposely 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 N.J.S.A. 2C:15-1 to include the following elements: (1) theft or attempted theft; (2) intimidating or assaultive conduct consisting of (a) inflicting bodily injury upon another ¹ 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; (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. Model Jury Charge 2.273. See also, N.J.S.A. 2C:20-3. Attempted theft is defined by combining the foregoing definition of theft with N.J.S.A. 2C:5-1 a. It is an abortive effort to perpetrate a theft.

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, 143 A.2d 530 (1958). The robbery statute makes no specific reference to the ownership of the property taken. The fact that the cash or personalty belongs to some one other than the thief is sufficient. State v. Ford, 92 N.J.Super. 356, 363, 223 A.2d 502 (App.Div.1966).

II. Comparison of 2C Robbery to Prior Law

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, 143 A.2d 530; State v. Bowden, 62 N.J.Super. 339, 162 A.2d 911 (App.Div.1960). Our prior robbery statute, N.J.S.A. 2A:141-1, was declaratory of the common law.

Clearly, the Legislature intended robbery under N.J.S.A. 2C:15-1 to represent a departure from the past in several respects. The predecessor to N.J.S.A. 2C:15-1, N.J.S.A. 2A:141-1, generally required the force or intimidation to precede or become concomitant with the larceny. State v. Culver, 109 N.J.Super. 108, 262 A.2d 422 (App.Div.1970). Our present statutory law requires consideration of the offender's conduct not only during a theft or attempted theft, but also during immediate flight after a theft or attempted theft.

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 attempted 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, 277 A.2d 240 (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 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.

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 N.J.S.A. 2C:15-1 robbery to N.J.S.A. 2A:141-1 robbery, evinces a legislative plan in the Code to retain the common law touchstones...