[173 NJSuper Page 140] This issue in this case is whether a person indicted for being armed with a firearm while committing a robbery under N.J.S.A.
2A:151-5 can be convicted after the effective date of the New Jersey Code of Criminal Justice (Code) if he was "armed" with a toy pistol. This court concludes he may not because N.J.S.A. 2C:15-1 b evidences a change in legislative intent.
Defendant was indicted for robbing a bank on May 17, 1979 and charged in three separate counts with robbery (N.J.S.A. 2A:141-1), with being armed with a firearm while committing a robbery (N.J.S.A. 2A:151-5) and with demanding money by menaces, force or violence with intent to rob (N.J.S.A. 2A:90-3). Defendant waived trial by jury in accordance with R. 1:8-1(a) and was found guilty of counts 1 and 3 by the court.
The State proved that on May 17, 1979 defendant entered the First National State Bank of Central Jersey and sat down at a bank officer's desk. After first inquiring into the possibility of opening an account at the bank, defendant opened his coat to expose what the bank officer thought was the barrel of a pistol. He demanded that the confronted employee give him money, and she being frightened, proceeded to a teller's window and instructed the teller to give defendant whatever cash there was. Defendant took the money and fled. He was identified through the bank's cameras and was arrested one week later. He admitted the robbery and told the police where he had hidden the weapon; the State stipulates it was a toy pistol.
There is no doubt that defendant is guilty of robbery and, without considering the effect of the Code, he would clearly be guilty of committing a robbery while armed. N.J.S.A. 2A:151-5 permits an increased penalty for committing a robbery while armed with a firearm, whether or not it is capable of being discharged, or while armed with any device, even a toy, which is capable of being mistaken for a firearm. See State v. Tims , 129 N.J. Super. 399, 402 (App.Div.1974), certif. den. 66 N.J. 326 (1974). Indeed, it has been held that one can be guilty of being armed by directing a bulge in one's pocket at the victim, because the evil contemplated by this statute is the possession of a device
having the capacity for the mere threatening of harm. See State v. Brewer , 142 N.J. Super. 70, 76 (App.Div.1975), aff'd o.b. 70 N.J. 329 (1976). It has also been said that this statute "contemplates punishment based on the victim's perception of what defendant had in his possession, rather than what he actually had." See State v. Cooper , 140 N.J. Super. 28, 33 (Law Div.1976), rev'd on other grounds 165 N.J. Super. 57, 67 (App.Div.1979).
But N.J.S.A. 2A:151-5 was repealed by the Code and replaced by N.J.S.A. 2C:15-16 which permits the penalty to be enhanced if the actor was armed. The language of this statute is more limited than its predecessor as concerns an actor who "is armed with, or uses or threatens the immediate use of a deadly weapon." A "deadly weapon" is defined in N.J.S.A. 2C:11-1c as:
This clear language deals with the objective use of the device rather than the subjective reaction of the victim. Under the Code a toy pistol cannot be a deadly weapon unless it is used in a manner which can cause death or great bodily harm. A weapon "known to be capable of producing" such a result is one which, when used as ordinarily expected in light of its construction and design, will cause death or serious bodily injury. See State v. Luckey , 69 Ohio Ops. 2d 111, 322 N.E. 2d 354 (Ct.App.1974); cf. State v. Smallwood , 346 A.2d 164 (Del.Sup.Ct.1975). Other states look to the subjective view of the victim, but in most of those states the statute expressly permits this or the courts are concerned with the distinction between a "dangerous" or "offensive" weapon and a "deadly" weapon. See Annotation, "Robbery by means of toy or simulated gun or pistol," 81 A.L.R. 3d 1006 (1977); State v. Cooper, supra.
Where the actor, as here, merely shows part of the toy pistol to the victim in order to convince the victim to turn her property over to him, but does not use it or threaten to use it as a bludgeon, he is not armed with a deadly weapon. Rather, the actor has only threatened the bank's employees with, or made them afraid of, immediate bodily injury while he was committing a theft. Such conduct is proscribed by N.J.S.A. 2C:15-1a(2), but it is not a crime of the first degree under the grading scheme of N.J.S.A. 2C:15-16.
This conclusion is supported by the legislative history of the Code. The Model Penal Code contains almost the same definition of robbery as our Code, but it does not, per se , make robbery a crime of the first degree if the actor was armed with or threatened use of a deadly weapon. The commissioners commented that the clause proscribing conduct which "threatens another with or purposely puts him in fear of immediate serious ...