State v. Cassady

• Decision Date: 11 March 2009
• Docket Number: A-94 September Term 2007.
• Citation: 966 A.2d 473,198 N.J. 165
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Marcus CASSADY, Defendant-Respondent.
• Court: New Jersey Supreme Court

966 A.2d 473

198 N.J. 165

STATE of New Jersey, Plaintiff-Appellant, v. Marcus CASSADY, Defendant-Respondent.

A-94 September Term 2007.

Supreme Court of New Jersey.

Argued October 20, 2008.

Decided March 11, 2009.

Tracey L. O'Brien, Assistant Prosecutor, argued the cause for appellant (Theodore F.L. Housel, Atlantic County Prosecutor, attorney).

John W. Douard, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).

Johanna Barba Jones, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Anne Milgram, Attorney General, attorney).

Justice RIVERA-SOTO delivered the opinion of the Court.

Defendant Marcus Cassady was convicted of two counts of second-degree robbery — one involving a teller at a bank and the second involving a salesman at a car dealership — in violation of N.J.S.A. 2C:15-1. He was sentenced to two consecutive ten-year terms of imprisonment, for an aggregate of twenty years' incarceration, subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2. Although concluding that the evidence presented in respect of the robbery of the bank teller was sufficient to sustain a second-degree robbery conviction, State v. Cassady, 396 N.J.Super. 392, 397, 934 A.2d 644 (App. Div.2007), the Appellate Division nevertheless held that, in respect of that conviction, defendant was entitled to an instruction on theft as a lesser-included offense of robbery and, hence, defendant's conviction for second-degree robbery of the bank teller was reversed and remanded. Id. at 399, 934 A.2d 644. The panel also determined that the sentencing judge incorrectly considered and weighed the aggravating and mitigating factors concerning defendant's sentence for his conviction for the second-degree robbery of the car salesman, and thus remanded that sentence for reconsideration. Id. at 402, 934 A.2d 644.

We conclude that the trial court properly denied defendant's request for a jury instruction concerning the lesser-included offense of theft on the bank teller robbery count because, in the circumstances presented, there was no rational basis for a theft charge. We also conclude that the Appellate Division erred when it remanded defendant's sentence on the car salesman robbery charge. We therefore affirm in part and reverse in part the judgment of the Appellate Division, and reinstate defendant's convictions and sentence.

I.

On February 2, 2004, defendant took a cab to the Cape Savings Bank located on Pacific Avenue in Atlantic City. Once there, defendant instructed the cab driver to wait while defendant entered the bank. Defendant, who is almost six and one-half feet tall, approached a teller window; in that bank, tellers are separated from the public by a solid counter topped with bullet-proof glass to a height of at least seven feet, and each teller stands on the enclosed side of the counter, in front of the cash drawer and facing the customer across the counter. He handed a withdrawal slip to the teller. That withdrawal "slip ha[d] nothing written on it, no name, no account number, no date, no signature, nothing except only the amount five thousand dollars." The teller "looked at him strangely and said [']Sir, do you have an account in this bank?[']" When defendant replied "no," the teller stated that she could not give the money to him. She testified as follows:

Then he said, ["]Please hurry up. I know how to get it.["] Still I was not doing anything and I was really shivering. At that point I was sensing something is wrong with this gentleman, and when I was waiting and thinking as to what to do, he said loudly, ["]Hurry up. I know how to get it,["] that's all I heard. The very next moment he jumped [over] the glass window, the bullet proof glass window and dropped [o]nto my counter top. That's all I know. I got scared and I dropped the keys and ran. I don't know how I did it. I ran back into the room adjacent where we have the automatic teller machine room and I locked myself into the room.

She further explained that she ran because she "was so scared I thought he would kill me." Conceding that defendant's actions were all directed towards seizing the money in the teller drawers and that defendant did not physically threaten to do the teller harm, she asked, "[h]ow can I guess that he is going to take only the money? He might do something to me..... Harm me or [k]ill me." She explained: "That's why I got scared — to death. And I didn't know what I was doing and I don't know how I ran into the other room." The teller's account was corroborated by three other tellers who also were on duty at that time,¹ as well as by a customer then in the bank.

After taking $2,410, defendant jumped back over the bullet-proof glass partition, left the bank² and got back into the waiting cab. He instructed the cab driver to take him to an automobile dealership where, in the course of trying to steal a car, he assaulted a car salesman. Although injured, the car salesman fought defendant to a draw, and defendant was arrested at the car lot.³

The Atlantic County grand jury returned an indictment charging defendant with two counts of second-degree robbery, in violation of N.J.S.A. 2C:15-1. Defendant's trial strategy was two-fold. First, defendant asserted that he had been misidentified, that it was not he who robbed the bank. As a fall-back position, defendant maintained that, if the jury determined he in fact had robbed the bank, then he was guilty only of theft and not robbery because he did not physically threaten the teller. Thus, during opening statements, defense counsel stated to the jury that "robbery actually means that somebody takes something from somebody else using force or threats of force, that is a very important concept to keep in mind." He urged to the jury that "there [are] very interesting principles that you have to keep in mind when you listen to this case. Was there a robbery or theft ... of property?" Defendant repeated that refrain by asking each of the tellers if defendant had "physically threatened" them.

At the close of the evidence, defendant requested that the court charge the jury on theft as a lesser-included offense of robbery. He argued that the statute requires that, "in the course of committing a theft" the defendant must "threaten[ ] another with or purposely put[ ] him in fear of immediate bodily injury" in order to be guilty of robbery. N.J.S.A. 2C:15-1(a)(2). Claiming that "the focus is not on the victim but on the actions and purpose of the defendant[,]" he asserted that "there was no immediate harm or threatened or implied [harm] if [the teller] did not comply. It was always directed towards the money." He thus requested that the court include in its jury charge the offense of theft as a lesser-included offense of robbery.

The trial court rejected that request. It noted the common understanding that "people that go into a bank to take money are prepared for combat. And they are prepared to hurt people, if they have to hurt people." It explained that "if you go into a bank and in order to get that bank teller to give you the money, you have to threaten them or put them in some kind of fear. So you start with that proposition[.]" Highlighting that the victim-teller testified that she "ran because [she] was scared and didn't know if [defendant] was going to kill [her,]" the court reasoned as follows:

And when was she scared that [she] didn't know what he was going to do to her? It was when this guy six foot four or five puts his hands on the glass and now is coming over the glass to invade her area, her secure area that is separated by a seven to seven and-a-half foot glass wall; that's why that glass wall is there [,] for protection. .... [B]ut for the fact that she was scared to death and ran, if she [remained in] front of that drawer, there is no doubt in my mind that she would have gone flying ..... So her space was invaded. And to say that under those facts and circumstances that she wasn't threatened or purposely put in fear of immediate bodily injury when a six foot five person scales a seven and a-half foot glass wall to go over into where the money drawer is, is absolutely ludicrous[.]

. . . .

The bottom line is that you have to assess the totality of the circumstances, and we are mindful . . . that a bank employee should not have to take a risk being shot on the off[-]chance that the perpetrator is bluffing and the employee should have the fortitude to call the perpetrator's bluff . . . .

So for all of those reasons I cannot in good conscience say that . . . there [is] a rational basis to charge [theft] in this case ..... [F]or those reasons a lesser included charge of theft on [the robbery] counts will not be given."⁴

The trial court charged the jury solely in respect of the two robbery counts listed in the indictment. After doing so, the trial court inquired of counsel: "Did I leave anything out?" Defense counsel responded that "[n]o, everything is good."

In respect of the bank teller robbery, the jury unanimously found defendant guilty as follows: that "on the 2nd day of February, [2004], defendant Marcus Cassady in the course of committing a theft did threaten immediate bodily injury to [the bank teller] and/or did purposely put [the bank teller] in fear of immediate bodily injury[.]" At sentencing, the trial court returned to the proofs in the case, stating that

The evidence in this case was very strong. When the defendant robbed the bank, it was captured on video tape. His fingerprints were on a glass wall that he climbed over to get at the teller to get into the drawer and take money.

Defendant is at least 6-foot 5. The teller who testified was just over 5-feet. She testified how she was scared for her life and ran into another room and locked herself in that room. He absolutely put her in fear of immediate bodily injury.

. . . .

The main defense in the...