On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Dreier, Scalera and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D. Dreier, J.A.D. (concurring in part and dissenting in part).
After a jury trial under Atlantic County Indictment No. 87-06-1105, defendant was convicted of three counts of second degree robbery and one count of simple assault. The court sentenced defendant to seven years imprisonment with three years parole ineligibility on the first robbery count and to a similar consecutive sentence on the second robbery count. The sentences on the two remaining counts were imposed to run concurrently with each other and with the first two counts. Thus, defendant's aggregate sentence was 14 years with six years parole ineligibility. Defendant now appeals.
The State's evidence, if believed, would establish that, while at the Showboat Casino, defendant seized a coin-filled plastic container belonging to Matilda Albertelli, a slot machine player. Ms. Albertelli shouted an alarm and defendant fled, pursued by Ms. Albertelli, Curtis Brown, a casino security guard, and several casino patrons.
As he ran through the casino, defendant bumped into patron Mary Smith, causing her to fall against a slot machine. At one point security guard Brown grabbed defendant's jacket. As defendant struggled to break Brown's grasp defendant's arm struck Madeline Frantzen. Breaking free of Brown, defendant
continued his flight and ran into Mary Dillon. Although they were not seriously injured, the evidence would support a finding that Smith, Frantzen and Dillon suffered bodily injury. See N.J.S.A. 2C:11-1a. Eventually, security personnel apprehended defendant.
The indictment charged defendant with four counts of robbery. The first count alleged that defendant "did use force and inflict bodily injury upon Mary Smith" in the course of committing a theft. The second, third and fourth counts, expressed in similar language, were based on the Frantzen, Dillon and Brown assaults. Although the jury found defendant guilty of three robberies, as to Brown it convicted defendant only of a simple assault.
Defendant contends that the robbery convictions must be reversed because the court did not instruct the jury as to a necessary culpability requirement. We agree and reverse.
"A person is guilty of robbery if, in the course of committing a theft, [the perpetrator] [i]nflicts bodily injury or uses force upon another." N.J.S.A. 2C:15-1a(1). The trial judge correctly instructed the jury regarding the element of theft, including the requirement that a taking be with a purpose to deprive the victim of the property. N.J.S.A. 2C:20-3a. In this context, the trial judge correctly defined the term "purposely." N.J.S.A. 2C:2-2b(1). However, regarding robbery's assault*fn1 element, the court merely stated:
In addition to proving beyond a reasonable doubt that the defendant was in the course of committing the theft, the State must also prove beyond a reasonable doubt that while in the course of committing that theft, the defendant inflicted bodily injury or used force upon another.
The State does not deny that a culpability requirement attaches to the assault element of robbery. The State contends that the trial court's explanation of the culpability requirement
of purposeful conduct when it defined the theft offense sufficiently instructed the jury that the infliction of bodily injury or the use of ...