Before Judges Keefe and Carchman.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Camden County.
This appeal requires us to examine the Supreme Court's decisions in State v. Talley, 94 N.J. 385 (1983) and State v. Smith, 136 N.J. 245 (1994) in determining whether defendant, whose testimony set forth facts admitting a theft by deception, N.J.S.A. 2C:20-4, was entitled to a jury instruction as to such offense when the underlying charge was robbery, N.J.S.A. 2C:15-1. We conclude that defendant was so entitled and reverse and remand for a new trial.
The issue arises in the following procedural and factual context. Defendant Timothy Freeman was charged with first degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7; third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5b; and second-degree possession of a firearm with purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4a. The trial Judge severed the charge of possession of a weapon by a convicted felon and a jury trial proceeded on the other counts. The jury found defendant not guilty of the robbery and the weapons charges but guilty of third-degree theft from the person, N.J.S.A. 2C:20-3, with a specific finding that the property taken had a value of less than $200. Defendant was sentenced to a five-year term of imprisonment with a one-year period of parole ineligibility together with restitution and statutory fines and penalties.
The victim's and defendant's version of events differed sharply. David Lucha, the victim, claimed that on December 28, 1996, he stopped his truck and picked up a woman walking on the roadway. After driving a short distance, the woman exited the truck, and defendant entered the truck. Although Lucha could not identify defendant, there was no factual dispute that defendant was in Lucha's truck as defendant admitted being there and was observed in the passenger's seat by a police officer who came upon the scene and spoke to defendant. According to Lucha, defendant pointed a gun at him and demanded money. Lucha turned over approximately $200 to defendant who then fled. Lucha reported the alleged robbery, and defendant surrendered himself to the police the next day.
Defendant's version of the events was substantially different. He claimed, at trial, that he was standing on the street when Lucha pulled up in his truck and asked defendant, who then entered the truck, to "go to the motel and get him some drugs and a prostitute." Lucha gave defendant fifty dollars whereupon defendant left the truck but never returned. Defendant denies that he had a weapon or that he threatened Lucha.
After the completion of the testimony, defendant requested that the Judge charge the jury on the crime of theft by deception, N.J.S.A. 2C:20-4, to reflect the testimony by defendant at trial. The trial Judge declined to do so and stated:
Okay. Counsel, I'm going to deny that request. The case of State of New Jersey v. Juan Darnell Smith, 136 N.J. 245, I believe is very much on point. In that case, the defendant took the stand and by his own admission admitted that he -- he said he was committing a theft of services. This case goes on, and this is a Supreme Court case, and it was indicated that a theft of services is not a lesser included offense of armed robbery and the defendant is not entitled to a jury instruction to that effect. It goes on to say that the essential element of deception in the case of obtaining services without payment is not essential to the robbery, and threat of immediate bodily harm element of armed robbery established in the offense is different both in degree and in kind than in theft of services.
In this case, what we have here is the defendant indicating that he took the money from the defendant [sic]. He's saying he took it for the purpose of trying to obtain drugs or a prostitute, and that he didn't come back. That is completely separate and apart from what is charged in the indictment.
And this case, Smith, indicates also that exercise of prosecutorial discretion in charging --prosecutorial charging discretion includes authority to decline to prosecute for an offense that defendant admits having committed if that offense is inconsistent -- with the theory of the State's case. The defendant should not be allowed to alter the State's trial strategy by admitting commission of an unrelated less serious offense, and thus having the Court charge the jury over the State's objection that it may return a verdict on that offense.
And for that reason, counsel, I'm not going to charge a theft by deception as a lesser included offense. I've already given them the lesser included of theft, theft in person, as well as theft of monetary amounts, and the elements are different for that reason. I am not going to charge it.
After charging the jury as to theft from the person, N.J.S.A. 2C:20-3, the jury acquitted defendant of the robbery and weapons charge and found defendant guilty of theft from the person with the amount taken to be "less than $200." No ...