On appeal from Superior Court of New Jersey, Law Division, Passaic County.
Bischoff, J. H. Coleman and Gaulkin. The opinion of the court was delivered by J. H. Coleman, J.A.D. Gaulkin, J.A.D. (concurring).
[187 NJSuper Page 409] 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.
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 ...