On Appeal from Superior Court of New Jersey, Law Division, Mercer County.
Antell and Brody. The opinion of the court was delivered by Brody, J.A.D.
Following a jury trial, defendant was convicted, as an accomplice, of two robberies with the use of a deadly weapon. N.J.S.A. 2C:15-1. The judge imposed the minimum Graves Act sentences for these first-degree crimes: concurrent prison terms of ten years including three years and four months of parole ineligibility. Defendant's single argument on appeal is that the judge erred in failing to charge second-degree robbery. We agree.
Defendant did not dispute evidence that she had driven three men to the vicinity of a liquor store where they committed the armed robberies, and then drove them away. The men entered the store wearing ski masks; two were brandishing handguns. Although defendant presented no evidence after the State rested, the State had presented evidence that could have left the jury with reasonable doubts as to whether defendant shared the men's purpose to use deadly weapons during the robberies or even knew or had reason to know before the robberies that the men were going to use firearms.
The case was tried and the sentences imposed before the Supreme Court decided State v. White, 98 N.J. 122 (1984). There the Court noted the circumstances in which the Code definition of accomplice accountability applies to a defendant charged with robbery while armed with a deadly weapon:
An accomplice may be guilty of armed robbery even though he did not personally possess or use the firearm in the course of the commission of the robbery. The accomplice has committed the same crime as the individual who possessed or used the gun if the accomplice had the purpose to promote or facilitate that crime, namely, robbery with the use of a firearm. See N.J.S.A. 2C:15-1b; N.J.S.A. 2C:2-6b; . . . .
[ State v. White, 98 N.J. at 130-131]
Thus when considering the guilt of a defendant charged as an accomplice to an armed robbery a jury must distinguish between whether the defendant shared his partner's purpose to commit the robbery with a deadly weapon or shared only his purpose to commit the robbery. If the jury determines that the defendant shared his partner's purpose to commit the robbery but not his purpose to use a deadly weapon, then the jury may find the defendant guilty of a second-degree robbery, but not a first-degree armed robbery.
The instructions here did not advise the jury that in order to find defendant guilty of first-degree armed robbery, it would have to find that she not only shared the men's purpose to rob, but also their purpose to use deadly weapons in the robberies. The following are the only references in the charge to the jury's task in this regard:
Now, a section of our statute provides that robbery is a crime of the second degree, except it is a crime of the first degree if the robber is armed with or uses or threatens the immediate use of a deadly weapon while in the course of committing the robbery. . . . If you find, beyond a reasonable doubt, that the defendant committed the crime of robbery, and was armed with a deadly weapon, or used or threatened the immediate use of a deadly weapon at the time of the commission of the robbery, then you will find the defendant guilty of robbery in the first degree.
The judge then twice defined at length the elements of a theft, once for each victim, and then defined the elements of accomplice ...