On appeal from the Superior Court, Law Division, Bergen County.
Fritz, Gaulkin and Long. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant appeals from a judgment of conviction entered upon a jury verdict finding him guilty of first-degree robbery (N.J.S.A. 2C:15-1a(2)), attempted murder (N.J.S.A. 2C:5-1a; N.J.S.A. 2C:11-3), aggravated assault (N.J.S.A. 2C:12-1b(1)), possession of hollow nose bullets (N.J.S.A. 2C:39-3f) and possession of a defaced firearm (N.J.S.A. 2C:39-3d).
The State's case rested on proofs that defendant, while armed with a handgun, robbed some $17,000 from employees of a Shop Rite supermarket. As defendant exited the market parking
area in his car, he was chased by a police car driven by Patrolman Vincent Aiello. The chase led ultimately into a deadend street where defendant exited his car, approached the police vehicle, fired two shots at Patrolman Aiello and escaped on foot.
Count Two of the indictment charged that defendant did "purposely and knowingly attempt to cause death or serious bodily injury resulting in death to PATROLMAN VINCENT AIELLO by shooting at him with a handgun." In instructing the jury, the trial judge did not present Count Two as charging an attempt to commit purposeful or knowing murder (N.J.S.A. 2C:11-3a(1), (2)), but rather as charging attempted "felony murder" (N.J.S.A. 2C:11-3a(3)). Although no objection was made at trial, defendant urges plain error (R. 2:10-2) because attempted felony murder "is not a crime."
The judge informed the jury that it must decide "whether or not the defendant did . . . attempt to commit the crime of felony murder in violation of the attempt statute, namely, N.J.S.A. 2C:5-1." He read to the jury the statutory definitions of criminal attempt (N.J.S.A. 2C:5-1a) and felony murder (N.J.S.A. 2C:11-3a(3)) and then undertook to weave those definitions together:
A person is guilty of a felony murder if he is engaged in the commission of or in an attempt to commit or flight after committing or attempting to commit -- here we're dealing with robbery -- and in the course of or in the furtherance of such crime or of immediate flight thereafter any person attempts to cause the death of a person other than one of the participants.
Now, in order to find the defendant, Cullen Darby guilty of felony murder, the State would be required to prove each of the following elements beyond a reasonable doubt. You understand that he is not charged with the crime of felony murder, it's an attempt.
Now, in order to understand the attempt I must give you the elements of the charge that he is accused of attempting to perform. Now, as far as felony murder is concerned, the elements are as follows: Number one, the defendant was in the course of committing a robbery; number two, that while in the course of committing or flight after committing or in attempting to commit the robbery the defendant caused the death of a person. Here again it is not alleged that he did commit the death of a person. It says that he attempted. Number three, that Patrolman Vincent Aiello was not a participant in the robbery. A participant is one who participates or shares in that crime.
The second element of the crime is that he purposely does an act constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. Remember what I have said before, however, conduct shall not be held to constitute a substantial step unless it is strongly corroborative of the actor's criminal purpose. This means that you must find that his conduct was guided by a criminal purpose. This makes it necessary for you to make a practical application. You must consider only that act or those acts of the defendant as a substantial step, or substantial steps, which progress or advance very near to the accomplishment of the intended crime to constitute a criminal attempt to commit the crime here, namely, felony murder. It or they must be immediately and not remotely connected with and directly related to the commission of the ...