The opinion of the court was delivered by: O'hern, J.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 301 N.J. Super. 307 (1997).
We granted certification primarily to consider whether a defendant may be convicted of felony murder on the basis of an uncharged predicate felony. A jury convicted defendant, Horace Branch, of the felony murder of a man caught in the cross-fire of a drug-related shootout. Defendant was charged with three separate acts of robbery that could have served as predicates to the felony-murder conviction under N.J.S.A. 2C:11-3. He was acquitted of each of these robbery charges. The Appellate Division concluded that the jury could have found that defendant was guilty of robbing a fourth victim, who was present at the time of the shooting but was not listed in the indictment as the victim of a robbery. On that basis, the Appellate Division upheld the felony-murder conviction. 301 N.J. Super. 307, 332-33 (1997).
We disagree that a defendant may be convicted of felony murder without fair notice, at the time of trial, of the predicate felony used to satisfy the requirements of the felony-murder statute. We find no other basis to sustain that conviction. Accordingly, we reinstate the judgment of the trial court, which set aside the felony-murder conviction. We leave undisturbed defendant's convictions for aggravated manslaughter and various weapons offenses and the sentences imposed thereon by the trial court.
In the early morning hours of November 4, 1993, Randolph Mosley was shot and killed in the foyer of a building at 260 Prince Street in Newark. The shooting was drug-related. The police investigation led to Patricia Lee (referred to as Pettie), Philip Murphy, and Ken Dortch, all individuals involved in the drug trade. They provided information concerning the shooting and implicated defendant.
At trial, all three testified to the events surrounding Mosley's death. According to Murphy, defendant and Dortch approached Murphy and asked to buy cocaine. Murphy was acting as lookout for a dealer who sold drugs out of 260 Prince Street and testified that he went inside to retrieve the drugs. Upon his return, defendant forced Murphy and Dortch into the building at gunpoint. As the three entered the foyer, defendant said "[t]his is a stickup," and ordered Murphy, Dortch, and some other individuals, one of whom was Pettie Lee, up against the wall. Murphy testified that he volunteered to get additional drugs from a hiding place upstairs. While upstairs, Murphy heard gunshots. Upon returning to the foyer, he saw Randolph Mosley laying on the floor in a pool of blood. Murphy was aware that Pettie was armed and testified that he heard Pettie wonder aloud if it was a bullet from her gun that killed Mosley.
Dortch testified that he was helping to sell drugs on the street the day the shooting occurred. Dortch stated that defendant approached him inquiring about a possible sale of cocaine. Dortch escorted defendant to the entrance of 260 Prince Street. Dortch and defendant met with Murphy who entered the building to get the drugs. While Murphy was inside, defendant robbed Dortch of $50 at gunpoint. After Murphy returned with the drugs, Dortch said that defendant forced them into the hallway of the building. He witnessed defendant rob Pettie. Pettie responded by firing her gun at defendant. Dortch said that he and some other individuals in the hallway ran upstairs and waited for the shooting to stop. When Dortch and the others returned downstairs, they found Mosley lying on the floor bleeding. Dortch and the other individuals chased defendant down the street until defendant stopped and pointed a gun at them.
The State offered Pettie immunity in exchange for her testimony at trial. She testified, as did Murphy and Dortch, that while waiting for a drug "pick-up," defendant robbed her at gunpoint. Pettie shot at defendant as he was leaving. Defendant fired two gunshots back at Pettie. Pettie stated that she believed initially that she was the one who shot Mosley.
Defendant testified that he had been sold inferior drugs and had simply returned to get his money back. He said that Pettie pulled a gun on him and that in the ensuing struggle her gun went off accidentally.
The State charged Branch with thirteen counts of crime, including armed robbery of Mosley, felony murder of Mosley, intentional murder of Mosley, armed robbery of Murphy, armed robbery of Dortch, and various weapons and hindering offenses. The felony-murder count specifically charged defendant with felony murder of Mosley in the course of robbing Mosley. The same indictment charged Pettie with two offenses, unauthorized possession of a handgun and possession of a handgun for an unlawful purpose of using it against another.
In its initial charge to the jury, the trial court instructed the jury on the felony-murder offense, but restricted the predicate felony to the robbery of Mosley:
Now the second count of the Indictment alleges that at the same time and place Mr. Branch, while in the course of committing a robbery upon the person of [Randolph] Mos[ley] or in an attempt thereat or during flight therefrom, did kill and murder the said [Randolph] Mos[ley] contrary to law. The court went on to define, in general terms, the elements of the offense of felony murder. So, the first element requires the state to prove beyond a reasonable doubt that the defendant was engaged in the commission of or an attempt to commit the robbery. The second and third elements require the state to establish that the victim's death was caused by the defendant and was caused during the commission of or the attempt to commit the robbery or flight from committing or attempting to commit that particular crime.
Following its receipt of general instructions and during its deliberations, the jury posed several written questions to the court. (Jury deliberations commenced on Thursday, November 10, 1994.) On the first day of deliberations, the jury asked if Pettie was charged with any criminal offense as a result of Mosley's shooting death. In its initial response, the court referred to Pettie's testimony that she had been charged with the weapons offenses. The jury also submitted a question that seemed to ask, in part, why defendant was not charged with the armed robbery of Pettie. The question was: "To convict of felony murder . . . must [defendant] be . . . charged guilty of one or the other felony charges on the list. Example, if Pettie was robbed is it felony murder[?]" The jury was reacting to the fact that Pettie had testified at trial that she was robbed at gunpoint by defendant. The court replied that defendant was "not being charged with the robbery of Pettie," but noted that it would discuss the matter on the following Monday when the jury reconvened.
Four days later, on Monday, November 14, 1994, the court reconsidered the jury's questions regarding its instructions, specifically concerning felony murder. The court requested that one of the jurors reread the question: "To be convicted of a felony murder must [defendant] be charged or guilty of one of the other felony charges on the list[?]" The court responded: "To constitute felony murder, if a murder takes place during the commission of ...