On certification to the Superior Court, Appellate Division, whose opinion is reported at 184 N.J. Super. 167 (1982).
For reversal -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Clifford, J.
[94 NJ Page 387] This appeal presents an important issue of first impression concerning the "consolidation of theft offenses" provision, N.J.S.A. 2C:20-2(a), of the Code of Criminal Justice (Code). Defendant was indicted for, inter alia, armed robbery, in violation of N.J.S.A. 2C:15-1. He was convicted of theft by deception, N.J.S.A. 2C:20-4.*fn1 The grand jury had received no evidence of
deception, and deception is not a necessary ingredient of a robbery conviction. The question is whether despite the foregoing circumstances the "consolidation of theft offenses" provision operates to allow the conviction for theft by deception to stand when the indictment was for armed robbery.
The Appellate Division reversed defendant's conviction. State v. Talley, 184 N.J. Super. 167 (1982). That court held that theft by deception was not an included offense of robbery under N.J.S.A. 2C:1-8(d)(1), because "although both crimes have in common the element of an unlawful taking, theft by deception requires proof that the taking was accomplished by fraudulent means, an element which is not included among the elements of robbery." Id. at 169. The Appellate Division made only passing reference to the "consolidation of theft offenses" provision in the course of rejecting the State's argument that the court could enter a judgment of conviction for theft by unlawful taking, N.J.S.A. 2C:20-3, by molding the verdict to comport with the jury's finding of guilt.
We granted certification, 91 N.J. 558 (1982), and now reverse the judgment below and reinstate defendant's conviction, based upon the impact on the facts of this case of "consolidation of theft offenses" provision of the Code. Because the statutory language and legislative intent behind that provision support our conclusion that the conviction of theft by deception is permitted, we need not address the Appellant Division's refusal
to mold the verdict and enter a judgment of conviction for theft by unlawful taking.
Defendant was indicted for possession of a handgun without the requisite permit (N.J.S.A. 2C:39-5(b)), possession of a weapon for unlawful purpose (N.J.S.A. 2C:39-4(a)), and first degree robbery while armed (N.J.S.A. 2C:15-1). The indictment resulted from a complaint filed against defendant by Darryl Pratt and Carl Coleman. The substance of the complaint, as well as the victims' testimony at trial, was that defendant and an unidentified accomplice forced the victims, at gunpoint, to surrender their wallets to defendant and the accomplice. Defendant testified that he received "about $300" from Pratt and Coleman, but asserted that they voluntarily transferred the funds to him in the course of attempting to purchase one-half pound of marijuana. Defendant stated that he sold them a quantity of herbal tea "on the pretext that it was marijuana and that the robbery charge was lodged against him as an act of reprisal." 184 N.J. Super. at 168.
On the basis of defendant's own testimony, the trial court instructed the jurors that they could find defendant guilty of theft by deception. In doing so it charged them on the essential elements of that offense without, however, encumbering their deliberations with any legal theories of "included offenses" of robbery. The jury acquitted defendant of the charges specified in the indictment but concluded he was guilty of theft by deception.
Under N.J.S.A. 2C:15-1(a), a person is guilty of robbery if, in the course of ...