On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Approved for Publication March 14, 1995.
Before Judges Dreier and Braithwaite. The opinion of the court was delivered by Braithwaite, J.s.c. (temporarily assigned).
The opinion of the court was delivered by: Braithwaite
BRAITHWAITE, J.S.C. (temporarily assigned).
Tried to a jury, defendant was convicted of robbery, N.J.S.A. 2C:15-1. Defendant was sentenced to an indeterminate term not to exceed five years at the Youth Correctional Institution Complex. We reverse.
On November 14, 1992 at approximately 10:30 p.m., John Bonk left work and went to Pat's Bar in Belmar where he had several drinks. He left the bar at 1:00 a.m. and took a taxicab to an after hours club in Asbury Park. Bonk was refused admittance to the club and because the taxicab that brought him there had departed, he decided to walk to another location where he could call another taxicab.
According to the State's witnesses, the driver of one of two cars observed Bonk walking down the road. The witnesses testified that the two vehicles stopped, and defendant and passengers from both vehicles ran back to Bonk, knocking him to the ground with a punch to his face and stole his wallet. The group then returned to their cars but were observed by Lieutenant Khan, an off-duty police officer who was performing guard duty. Lieutenant Khan radioed to other officers who were able to stop the cars.
Defendant testified that Bonk had kicked his car as it passed him, and he and his friends stopped to see if defendant's vehicle was damaged. Defendant stated he noticed a footprint on his car, and with his friends, he ran back toward Bonk with the intention of assaulting him but not robbing him. Defendant further testified that before he reached Bonk, one of his friends punched Bonk in the head knocking him to the ground. Defendant and his friends returned to their cars, and he did not know that one of his friends had taken Bonk's wallet.
Bonk was unable to identify defendant or any of his friends by their faces, but did recognize their clothing. Bonk's wallet was recovered from under the seat of defendant's car and $55 was found on the seat. At trial, Lieutenant Khan identified defendant as one of the persons arrested in connection with the robbery.
On appeal defendant raises the following argument:
POINT I THE COURT'S FAILURE TO INSTRUCT THE JURY ON LESSER-INCLUDED OFFENSES CONSTITUTES REVERSIBLE ERROR.
At trial defense counsel objected to the Judge solely charging robbery, and contended that the crime of hindering apprehension should have been charged since defendant drove the group away. Although defendant never requested a charge on simple assault, he argues on appeal that the Judge should have charged assault sua sponte. Assault is not strictly a lesser-included offense of robbery since the elements are slightly different. See State v. Sewell, 127 N.J. 133, 146-47, 603 A.2d 21 (1992). We need not address the issue of whether or not the court should have charged assault sua sponte because we are satisfied that the court's charge on accomplice liability "inadequately guided the jury in performing the critical task of determining defendant's guilt or innocence[.]" State v. Concepcion, 111 N.J. 373, 381, 545 A.2d 119 (1988).
The trial Judge's charge on accomplice liability defined accomplice and discussed the sharing of the same purpose but it spoke in generalities only. The Judge failed to fit the charge to the facts of the case.
It is not always enough simply to read the applicable provision of the criminal code, define the terminology, and set forth the elements of the crime. . . . Ordinarily, the better practice is to mold the instruction in a manner that explains the ...