On appeal from Superior Court, Law Division, Camden County.
Antell and D'Annunzio. The opinion of the court was delivered by Antell, P.J.A.D.
At approximately 7:00 p.m. September 28, 1982 the cashier at the office of the Courier Post in Cherry Hill was robbed at gun point of a large amount of cash by two men. In connection therewith defendant was indicted for robbery, N.J.S.A. 2C:15-1, possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4, and conspiracy to rob, N.J.S.A. 2C:5-2. After a trial by jury he was convicted of conspiracy and a jury disagreement was recorded as to the other two charges.
On this appeal defendant first argues that the trial court erred in failing to instruct the jury as to the defense of "renunciation of purpose" as an affirmative defense to the charge of conspiracy. It is noted that the issue is raised for the first time on this appeal.
The evidence upon which defendant rests his claim to the defense of renunciation is found in the testimony of defendant himself and the testimony of Detective Beverly of the City of Camden Police Department. According to defendant, during the period of approximately one month before the robbery he had been approached on a number of occasions by Tyrone Wolley who solicited him to take part in robbing the Courier Post. On each occasion defendant rejected the invitation and answered Wolley that he was not interested in doing armed robberies. Approximately one or two weeks before the Courier Post robbery actually occurred, defendant visited Detective Beverly and told him of Wolley's solicitations. He did not, however, suggest that he had agreed to join the enterprise and, in fact, said that he told Wolley he would not do so. His
purpose, he said, in giving Detective Beverly the information was to enable the police to investigate the matter.
The defense of renunciation to a charge of conspiracy is found in N.J.S.A. 2C:5-2e:
Renunciation of purpose. It is an affirmative defense which the actor must prove by a preponderance of the evidence that he, after conspiring to commit a crime, informed the authority of the existence of the conspiracy and his participation therein, and thwarted or caused to be thwarted the commission of any offense in furtherance of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of criminal purpose as defined in 2C:5-1d. . . .
It is evident that the basic condition of the defense finds no support in the evidence. The statute presupposes an acknowledgment by the actor that he actually conspired to commit a crime and its benefits are conferred only where he informs police authority of the conspiracy's existence "and his participation therein. . . ." Where the elements of the defense have been shown by a preponderance of the evidence one can be said to have "renounced" the conspiracy. Renunciation, after all, posits prior participation, and defendant could not renounce a conspiracy he had not joined. The defense was not available to defendant for the reason that, as he testified, he had steadfastly refused to support the criminal undertaking. His testimony to this effect as well as Detective Beverly's was relevant, not to whether he had renounced the conspiracy, but only to whether he had ever joined it in the first place. Once this issue was resolved against defendant there was nothing else in the record to support a finding of renunciation.
Defendant next contends that the trial judge improperly concluded that defendant had failed to make a prima facie showing that the State had unconstitutionally used its peremptory challenges. During the jury selection process defense counsel objected that the prosecutor was exercising his peremptory challenges to exclude blacks from the jury. The court ruled that a pattern of systematic exclusion had not been shown, and although defendant asked the court to inquire as to the prosecution's reasons for exercising its challenges as it did
or, in the alternative, to dismiss the panel and start jury selection anew, ...