On certification to the Superior Court, Appellate Division.
Clifford, Pollock, Garibaldi, Stein, O'Hern
[136 NJ Page 247] The opinion of the Court was delivered by
We granted certification, 134 N.J. 561 (1993), to review the Appellate Division's reversal of defendant's convictions for armed robbery, a violation of N.J.S.A. 2C:15-1, and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d. In an unreported opinion the Appellate Division held that our decision in State v. Talley, 94 N.J. 385, 466 A.2d 78 (1983), "mandates a reversal because of the trial court's refusal to allow a jury to convict defendant for theft of services," a disorderly-persons offense under N.J.S.A. 2C:20-8 and N.J.S.A. 2C:20-2b(3). Because we are satisfied that Talley does not apply in the circumstances before us, we reverse and reinstate defendant's convictions.
On May 23, 1990, a taxi driver, Maroun J. Maroun, picked up defendant in New Brunswick and drove him to an Edison motel. Maroun claimed that defendant had attempted to pay the seven-dollar fare with a counterfeit one-hundred-dollar bill. The driver refused to accept the bill because he saw that defendant had a ten-dollar bill in his hand. In response, defendant drew a large knife and took the victim's money, amounting to about $120 in cash. Defendant fled, only to be arrested shortly thereafter with $124 in his pocket. The police failed to find a knife.
Defendant admitted that he had attempted to pay with a counterfeit bill, but claimed that he had merely left the cab without paying and that he had never had a knife. He further claimed that the cash in his pocket constituted what remained of his paycheck. Defendant produced two witnesses, one of whom testified that defendant had received his paycheck on the day of the theft and the other that she had taken defendant to a check-cashing establishment that day.
The trial court rejected defendant's request to instruct the jury on theft of services. It limited its instruction to the offenses contained in the indictment, namely, armed robbery and the
weapon-possession charge, and explained to the jury that if it believed defendant's version of the events and decided that defendant had committed theft of services only, it must find defendant not guilty of the charges brought against him. The jury returned a verdict of guilty on both counts. Merging the charge of possession into the robbery charge, the trial court sentenced defendant to twenty years imprisonment with a parole-ineligibility period of six years and eight months pursuant to the persistent-offender provision, N.J.S.A. 2C:44-3a. It denied defendant's post-trial motion for a mistrial based on the jury instructions.
Defendant based his appeal to the Appellate Division on the single contention that the trial court had improperly denied his request for a jury instruction on what defendant characterized as "the lesser-included offense" of theft of services. Because the Appellate Division concluded that the record contained "evidence of a single integrated act of theft," it reversed. Quoting from State v. Sloane, 111 N.J. 293, 299, 544 A.2d 826 (1988), the court declared that a trial court should give a jury an instruction that the facts support and the defendant requests, to protect against a jury convicting a defendant of a greater charge solely to ensure that the defendant not go free.
In seeking reversal of the Appellate Division judgment, the State poses as the sole issue whether Talley, supra, 94 N.J. 385, "requires consolidation of two unintegrated thefts, involving distinct properties, misappropriated by distinct methods with distinct victims."
Primarily, we address the issue of lesser-included charges. To be considered a lesser-included offense, a crime either must be established by proof of the same or less than all the facts used to establish the greater charge, N.J.S.A. 2C:1-8d(1), or it must differ ...