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State v. Planes

Decided: March 4, 1994.

STATE OF NEW JERSEY, PLAINTIFF,
v.
RAUL PLANES, DEFENDANT.



Destefano

Destefano

OPINION

DESTEFANO, J.S.C.

On the evening of September 13, 1992, Defendant, Raul Planes, and two confederates were in the process of burglarizing and stealing an automobile owned by Michael Boyajian. While his two confederates were engaged inside the automobile, Mr. Planes stood watch outside. Michele Zurn, a local resident, was out walking her dog and came upon the crime in progress. Mr. Planes turned to Ms. Zurn and said, "You better keep your mouth shut, or I'll get you. You got to walk that mutt sometime." Ms. Zurn testified before the Hudson County Grand Jury. The Assistant Prosecutor asked Ms. Zurn the following questions, "In other words, he'll come back and watch for you?" Ms. Zurn answered, "He said you got to walk that dog sometime." The Prosecutor continued, "Did you feel frightened for your life?" Ms. Zurn responded, "Yes, this guy was acting drunk, God only knows if he was on drugs, I took it very serious."

After the encounter with Mr. Planes, Ms. Zurn ran away, but managed to see Mr. Planes and his two confederates ride off in the stolen automobile. Ms. Zurn called the police. The automobile and its occupants were stopped soon thereafter, and Ms. Zurn made an on scene identification.

Raul Planes is charged with robbery, burglary in both the second and third degree, and attempted theft of movable property. Mr. Planes moves to dismiss the robbery count in the indictment.

The defense argues that the threat against Ms. Zurn was not of immediate bodily injury, and, accordingly, robbery does not lie. The State counters that Ms. Zurn was placed in immediate fear by reason of the threats and fled the scene. It is evident that no bodily injury occurred, that no force was used upon Ms. Zurn and that Mr. Planes was in the course of committing a theft.

The issue presented is whether the threats made by Mr. Planes to Ms. Zurn, while Mr. Planes was in the course of committing a theft and burglary, are sufficient to sustain a charge of robbery. This court finds that under the facts presented, they are sufficient to sustain the charge.

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. N.J.S.A. ...


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