The defendant moves for a new trial contending that the court erroneously instructed the jury to return verdicts on two counts of robbery rather than one. He argues that although two persons were assaulted during the course of the theft, only one theft occurred and therefore only one robbery was committed.
The issue presented to the court is whether a defendant who uses force against two employees of a store in the course of committing a theft of that store commits one robbery or two. The court concludes that two acts of robbery are committed.
Defendant Clifford Lawson was tried by a jury on a two count indictment charging him with the robbery of Deborah Schlapack and the robbery of John DeBella. Deborah Schlapack and John DeBella were security guards employed by Hahne's Department Store in Westfield. During the course of their duties they observed the defendant shoplifting. They approached the defendant and questioned him regarding the items of property in his possession. The defendant refused to answer their questions and attempted to leave the store with the property. When the security guards tried to stop him, the defendant assaulted both guards and fled. The following day the defendant was apprehended by the police.
At the close of a five-day jury trial the court instructed the jury to return verdicts on two counts of robbery -- one as to each security guard.*fn1 The jury was further instructed that if it found the defendant not guilty as to either count it should then consider the lesser included offenses of theft and assault as to each security guard.*fn2
The common law defined robbery as the felonious taking of personal property from the person or custody of another by force or intimidation. State v. Compo, 108 N.J.L. 499 (E & A 1932). The pre-code robbery statute, N.J.S.A. 2A:141-1, was declaratory of the common law.
The current statute defines robbery as follows:
N.J.S.A. 2C:15-1(a) states that:
A person is guilty of robbery if, in the course of committing a theft, he:
1. Inflicts bodily injury or uses force 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.
Two recent New Jersey court decisions have had occasion to interpret the statute regarding the question of whether there must be a theft from the person who is subjected to force or intimidation in order for there to be a robbery, and thus ...