On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication October 23, 1997.
Before Judges Dreier, Keefe and P.g. Levy. The opinion of the court was delivered by P.g. Levy, J.A.D.
The opinion of the court was delivered by: Levy
The opinion of the court was delivered by
Defendant was convicted of armed robbery (N.J.S.A. 2C:15-1) and sentenced to a term of twenty years with ten years parole ineligibility. At trial, after several hours of deliberation, the jury returned a note to the trial Judge indicating they were deadlocked. While giving only a modified "Allen charge," permitted by the Supreme Court in State v. Czachor, 82 N.J. 392, 413 A.2d 593 (1980), the trial Judge also essentially told the jury he would declare a mistrial if they did not reach a verdict within forty-five minutes. The Judge sent the jury back to deliberate, and they reached a guilty verdict forty-eight minutes later. Because the instructions had the clear capacity to alter the deliberation process and ultimately result in a guilty verdict, we conclude they constituted plain error and reverse and remand for a new trial.
On June 29, 1993, Thomas Bello was working at the Hill's Ice Cream Store in Edison. Defendant and another man, described by Bello as "thin black youths ... around 17 or 18 years-old," entered the store and requested two hot dogs. When Bello told them they did not have enough money for the hot dogs, one man left to find additional money. He returned, and although they still did not have enough money, Bello sold them the food and they left.
Approximately ten minutes later, Bello was in the back of the store when he heard a bell indicating the store's front door had opened. Defendant and his companion walked behind the counter and Bello came out from the back of the store and told them they could not go behind the counter. In response, they told him to "stay back, this has nothing to do with [you]." Bello said that defendant held his hand in his pants and gestured as though he had a weapon in his pocket. The two men opened the cash drawer, took approximately $300 and fled. Bello called the police and officers arrived within five minutes. Eventually the police arrested defendant, he was indicted and the trial ensued.
When the trial concluded, the jury was sent to begin deliberations. The next day, the jury continued its deliberations in the morning. Later in the day, at approximately 2:16 p.m., the jury sent the following note to the Judge:
Judge, we are deadlocked on two of the three counts. We are all agreed on one count only. One of the jurors feels he does not have to argue his point to the rest of us. Please advise at this point what we should do.
In response, the Judge advised the jury:
First of all, I would presume, I have to assume that since this is a one-count indictment, that the count that you've already decided on is Count 1, the armed robbery, first degree. I would have to assume in accordance with my instructions to this jury that you ladies and gentlemen have decided on a not guilty verdict on that charge and that you're now considering the two remaining lesser-included which are the robbery and/or fourth degree theft. I have to assume that. I don't know, and I'm not asking.
But it would be the only way that this note would make sense because there is only one count here and that's the armed robbery. The other two are lesser-included. And if you have found him guilty on the armed robbery, then you never have to discuss the robbery or the theft. If you find him not guilty of the armed robbery, then you deal with the robbery and you deal with the theft, those two remaining charges.
I am debating whether I should declare a mistrial and send you home or whether I should send you back to ...