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State v. Sein

Decided: May 21, 1991.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
FRANCISCO SEIN, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 232 N.J. Super. 300 (1989).

The opinion of the Court was delivered by Clifford, J. Justices Handler, Pollock, and Stein join in this opinion. Chief Justice Wilentz has filed a separate dissenting opinion in which Justices O'Hern and Garibaldi join.

Clifford

The narrow issue on this appeal, here by certification granted, 117 N.J. 159 (1989), is whether the sudden snatching of a purse from the grasp of its owner involves enough force to elevate the offense from theft from the person to robbery as defined by N.J.S.A. 2C:15-1a(1). Finding insufficient evidence that defendant had used force on his victim as contemplated by the statute, the Appellate Division reversed defendant's conviction for robbery and remanded for the entry of an amended judgment of conviction for theft and for resentencing for that offense. 232 N.J. Super. 300, 305 (1989). Because we conclude that defendant's conduct did not involve the type of force envisioned when the Legislature amended the robbery statute, we affirm.

- A -

On August 27, 1986, Edythe Williams cashed her unemployment check at Proper Check Cashing, a concession located in the Woolworth store on Main Street in Paterson. Mrs. Williams placed the proceeds in a zipped compartment in the strapless, clutch-type purse that she carried under her arm. After purchasing a notebook in Woolworth's, she left the store and headed for her car, which she had parked a couple of blocks away.

Mrs. Williams arrived at her car intending to drop off the notebook and continue shopping in the area. She went to the

passenger side and put her key in the lock, all the while Carrying the purse under her right arm. As Mrs. Williams stood in the street, defendant, Francisco Sein, walked up and stood close beside her on her left. Mrs. Williams turned to face the man, thinking he had approached to ask a question, but defendant said nothing. Instead, "he reached across [her] and just slid [her] pocketbook -- which wasn't very hard to do -- from under [her] arm and took off," running toward Main Street. There was no evidence that defendant used any force other than that required to slide the purse from beneath Mrs. Williams' arm.

The police apprehended defendant, who was subsequently indicted for robbery. The robbery statute, N.J.S.A. 2C:15-1, reads as follows:

a. Robbery defined. 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.

b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.

At trial, defendant moved at the conclusion of the State's case for a judgment of acquittal in respect of the robbery charge, contending that the case should proceed only on the lesser-included offense of theft from the person, defined by N.J.S.A. 2C:20-3a as the "unlawful[] taking, or exercis[ing of] unlawful control over, movable property of another with purpose to deprive him thereof." The crux of defendant's argument was that there was no evidence in the record that the taking of Mrs. Williams' purse was accompanied by the use of force against her person, a requirement for conviction under

N.J.S.A. 2C:15-1a(1). The State, on the other hand, urged that a judgment of acquittal would be improper because the Legislature intended that the force used to remove the purse from the victim was sufficient to elevate the unlawful taking to a robbery. The trial court denied defendant's motion, and the jury subsequently found defendant guilty of second-degree robbery.

On appeal, defendant contended that the trial court had erred by submitting the second-degree-robbery charge to the jury because there was no evidence that defendant had used force on Mrs. Williams in the course of the purse-snatching. The Appellate Division agreed, stating:

The amended robbery statute, like the common law and N.J.S.A. 2A:141-1 (repealed), requires the application of force upon another greater than is necessary merely to remove the property from the victim's person or control. * * *

Where, as here, the victim is completely surprised by a purse-snatcher and offers no resistance, and force is applied only to the purse in order to separate it from the owner, the crime is not a robbery. Such force is not directed "upon another" but instead upon the object itself.

[232 N.J. Super. at 304-05.]

The court reversed the robbery conviction and remanded for the entry of a judgment of conviction for theft and for resentencing for that offense. Id. at 305.

Before us, the State argues that the Appellate Division's construction of the "uses force upon another" language in the robbery statute, N.J.S.A. 2C:15-1a(1), both misconstrues the plain meaning of the statute and contravenes the relevant legislative intent. According to the State, the Appellate Division's standard will "change the focus of a robbery committed through the use of force from the conduct of the perpetrator to the nature of the property that he stole * * * and the particular characteristics of the victim as well as the victim's actions." in addition, the State submits that the standard established by the Appellate Division to determine the amount of force necessary to effect a robbery is "inexact and unworkable," and that therefore jurors will be required to use concepts founded in the

science of physics to determine whether more force was used than that quantum necessary merely to remove the object.

- B -

Cases involving "snatching" have required courts to determine where to draw the line between robbery and the lesser offense of larceny from the person. A certain amount of "force" is necessary to take property from the person of another, but whether the amount necessary merely to accomplish that taking is sufficient to warrant the more serious penalties associated with robbery has vexed those courts that have considered the question.

Some jurisdictions have construed the term "force" as used in the state's robbery statute to mean mere physical force or energy (see, e.g., Raymond v. State, 467 A.2d 161 (Me. 1983)), while others have rejected hypertechnical distinctions in favor of a view that acknowledges that snatching an object from the grasp of the owner increases the risk of danger to the victim and justifies enhanced punishment. E.g., People v. Santiago, 62 A.D.2d 572, 405 N.Y.S.2d 752 (1978), aff'd, 48 N.Y.2d 1023, 402 N.E.2d 121, 425 N.Y.S.2d 782 (1980); Commonwealth v. Brown, 506 Pa. 169, 484 A.2d 738 (1984). Those jurisdictions implicitly recognize that victims do not turn over their property willingly, even if they do not resist or struggle with a thief. Thus, the amount of physical energy necessary to take the property is deemed sufficient to support a robbery conviction.

The predominant view, however, is that there is insufficient force to constitute robbery when the thief snatches property from the owner's grasp so suddenly that the owner cannot offer any resistance to the taking. See W. LaFave & A. Scott, Criminal Law ยง 8.11(d), at 781 (2d ed. 1986). This "majority rule" has been set forth in the following terms:

[A] simple snatching or sudden taking of property from the person of another does not of itself involve sufficient force to constitute robbery, though the act may be robbery where a struggle ensues, the victim is injured in the taking, or

the property is so attached to the victim's person or clothing as to create resistance to the taking.

[People v. Patton, 76 Ill. 2d 45, , 389 N.E.2d 1174, 1175 (1979).]

The Illinois Supreme Court confirmed that rule in People v. Taylor, 129 Ill. 2d 80, 541 N.E.2d 677 (1989):

The force required to overcome the physical resistance created by the attachment of an item to the person or clothing of the owner is to be distinguished from "the mere physical effort" which must occur whenever any item, not attached to the person or clothing of the owner, is transferred from one person (the owner) to another person (the taker). It will be a theft, therefore, and not a robbery, when the evidence "shows no more force than the ...


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