State v. Mirault

CourtUnited States State Supreme Court (New Jersey)
Citation457 A.2d 455,92 N.J. 492
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. David M. MIRAULT, Defendant-Appellant.
Decision Date17 March 1983

Page 492

92 N.J. 492
457 A.2d 455
STATE of New Jersey, Plaintiff-Respondent,
David M. MIRAULT, Defendant-Appellant.
Supreme Court of New Jersey.
Argued Nov. 23, 1982.
Decided March 17, 1983.

[457 A.2d 456]

Page 493

Matthew Astore, Asst. Deputy Public Defender, for defendant-appellant (Joseph H. Rodriguez, Public Defender, attorney).

Katherine A. Smith, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney).

The opinion of the Court was delivered by


The central issue here is whether using force or inflicting bodily injury on a police officer investigating a burglary constitutes the assault "upon another" that elevates theft to robbery under N.J.S.A. 2C:15-1. We hold that it does and affirm the judgment below in that respect but modify it with respect to merger of one count of the indictment.

On February 11, 1980, a returning homeowner noticed her front door open and its molding torn off. Before entering, she called the police from a nearby store. A responding patrolman cautioned her to remain outside while he entered the home alone with his revolver drawn.

The police officer and the defendant, Mirault, soon confronted each other. Although their versions differ, it is clear that a violent struggle followed. The jury heard the officer describe how, after he shouted "freeze," the defendant leaped at him and grabbed his revolver as the two fell to the ground. The defendant claimed that he feared the officer would use the gun on him. The officer said that he deliberately discharged the gun to empty its chambers and that the defendant threatened to kill him. The struggle continued for several minutes from room to room before backup police arrived and subdued the defendant. In its course the patrolman suffered a dislocated shoulder, torn trigger finger, and abrasions. The police found stolen property on the defendant's person and in a briefcase. Defendant was indicted in this incident for burglary, N.J.S.A. 2C:18-2; robbery, N.J.S.A. 2C:15-1; attempted murder of the officer, N.J.S.A. 2C:5-1; and aggravated assault on the officer, N.J.S.A. 2C:12-1 b(1).

Defendant pleaded not guilty to all charges. At trial, the judge granted defendant's motion to dismiss the attempted murder charge before submitting the case to the jury, which rendered a guilty verdict on all remaining charges. The court vacated the jury's verdict on the count of burglary in the second

Page 495

degree and substituted burglary in the third degree. 1 On these [457 A.2d 457] charges the court sentenced the defendant to concurrent terms of 18 years for the robbery, 4 years for the burglary, and 7 years for the aggravated assault, with a minimum term before parole eligibility of 7 years on the robbery count. 2

In an unreported opinion, the Appellate Division affirmed. We granted certification. 91 N.J. 216, 450 A.2d 544 (1982).


The New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 to 98-4, elevates theft to robbery if a person inflicts bodily injury upon another or threatens another in the course of committing a theft, which includes the immediate flight after its commission. N.J.S.A. 2C:15-1 a. The robbery statute as enacted 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.

Page 496

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 the 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. [Emphasis added]. 3

The Code represents a new and comprehensive system of criminal law. In defining robbery, as in many other instances, "the language and grading of the Code have marked a clean break with the past." State v. Butler, 89 N.J. 220, 226, 445 A.2d 399 (1982). The Legislature has stated its intent that the new Code "embody principles representing the best in modern statutory law...." L.1968, c. 281, § 4.

Modern legislatures are seeking to protect the citizenry not just from thieves but from violent, life-threatening thieves. The drafters of the Model Penal Code (MPC), upon which our Code section is based, have so noted:

The violent petty thief operating in the streets and alleys of big cities--the "mugger"--is one of the main sources of insecurity and concern in the population at large. There is a special element of terror in this kind of depredation. The ordinary citizen does not feel particularly threatened by surreptitious larceny, embezzlement, or fraud. But there is understandable abhorrence of the robber who accosts on the streets and who menaces his victims with actual or threatened violence against which there is a general sense of helplessness. [II Model Penal Code, § 222.1, comment 1 at 98 (Rev'd Comments 1980) ].

Both the New Jersey Code and the MPC broaden common law robbery in several ways: they include injury or threat to one other than the custodian of the property; they include escape from commission or attempt; and they eliminate the element of asportation. Our new statute thus "manifests[457 A.2d 458] a legislative intent to adopt a more expansive concept of robbery." State v. Carlos, 187 N.J.Super. 406, 455 A.2d 89 (App.Div.1982), certif. den., ---N.J.

Page 497

----, ---A.2d ---- (1983). 4 These statutory changes follow the developing common law. 5

Defendant quite candidly recognizes that the trend evidenced in many new robbery statutes is to provide enhanced punishment even where the force is used against someone other than the victim of the theft. See Ala.Code § 13A-8-43(a)(1) (1978) ("force against ... the owner or any person present"); Ariz.Rev.Stat.Ann. § 13-1902 A (1978) ("force against any person"); 6

Page 498

N.Y.Penal Law § 160.15 (McKinney 1975) ("injury to any person who is not a participant"); Ohio Rev.Code Ann. § 2911.02 (Page 1982), Commentary ("person against whom force is used or threatened need not be the victim of the theft itself"); 18 Pa.Cons.Stat.Ann. § 3701(a) (Purdon 1973) ("inflicts ... injury upon another ... [or] threatens another ...").

Our pre-Code statute defined robbery as taking a person's property "by violence or putting him in fear." N.J.S.A. 2A:141-1. In contrast, the Code imposes liability for injury or threat to "another" before, during, and after a theft. N.J.S.A. 2C:15-1 a. It is manifestly broader than the prior statute. The expansion of the definition expresses the Code's intent to focus on the felon's conduct and not the victim's status. In explaining the Code's coverage of the post-theft events, the commentators noted: "The thief's willingness to use force against those who would restrain him in flight strongly suggests that he would have employed it to effect the theft had there been need for it." II New Jersey Penal Code § 2C:19-1, Commentary 2 at 214 (New Jersey Criminal Law Revision Commission, Final Report 1971) ("II NJPC"). 7

[457 A.2d 459] II

However, the defendant would have us stop here and conclude that our Legislature did not intend enhanced punishment to apply where a thief uses force against an arresting police officer. He argues that although the Legislature intended to

Page 499

protect innocent citizens of this State, neither the Legislature nor any commentator has indicated that the robbery statute also exists as a sanction against the thief who may have no propensity to assault his theft victim, but who may fight a police officer who intends to apprehend him. This Court, he argues, should not presume that the Legislature's unspoken intention was to include police officers in the class of persons protected by the statute.

We disagree. The commentary to the New Jersey Code makes it clear that the Code addresses the criminal who is prone to use violence. "[This] offender exhibits himself as seriously deviated from community norms, requiring more extensive incapacitation and retraining." II NJPC, supra, § 2C:19-1, Commentary 1 at 213. 8 We discern no legislative intention to discount assault upon police officers as though it were something to be expected, a part of the game, so to speak. The legislative concern for the safety of police is quite to the contrary. N.J.S.A. 2C:12-1 b(5) elevates even a simple assault upon a police officer to aggravated assault regardless of the severity of the injury.

In matters of construction we look first to the language of the statute. The statute is broadly encompassing in its use of the phrase "another." The word "another" is not a technical word. "In the absence of any explicit indication of special meaning, words of a statute are to be given their ordinary and well understood meaning." Levin v. Parsippany-Troy Hills Tp., 82 N.J. 174, 182, 411 A.2d 704 (1980). "The provisions of the code shall be construed according to the fair import of their terms...." N.J.S.A. 2C:1-2 c. As used in the statute, the term "another" is broader than "him" or some other term restricted to the actual theft victim. Including an investigating police officer in the term "another" adheres to the Code's basic approach that the degree of crime depends upon the objective use of force rather than technical concepts of custody and possession.

Page 500


Defendant further argues that the theft was complete when the police officer ordered the defendant to "freeze" and that what happened thereafter is a distinct offense unrelated to the theft. We disagree. As noted, the Code has broadened the concept of robbery. It...

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