The opinion of the court was delivered by: Coleman, J.
On certification to the Superior Court, Appellate Division.
The critical issue in this appeal is whether the crime of attempted robbery exists under the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9 (Code). A jury found defendant guilty of first-degree robbery. The Appellate Division vacated the robbery conviction, finding the State failed to establish either the use of force or the threat of immediate bodily injury, proof of which is an essential element of the crime of robbery. The panel declined to mold the verdict to enter a conviction for attempted robbery because it was of the view that such an offense is not cognizable under the Code. Even if attempted robbery had been recognized as an inchoate crime under the Code, the panel would not have molded the verdict to reflect a conviction for that offense because it found that the trial court had erred in permitting the State to inquire into the details of defendant's prior convictions. We conclude that attempted robbery is an offense contemplated by the Code and remand the matter for a retrial on attempted robbery.
On January 25, 1994, at 10:45 p.m., two plain-clothed police officers, Detective Joseph Carroll and Lieutenant Michael Mordaga, observed defendant standing in front of a Roy Rogers restaurant that was scheduled to close at ll:00 p.m. The officers were investigating a number of recent fast-food restaurant hold-ups, all occurring when the target restaurant was about to close for the night. Defendant was wearing a three-quarter length coat, a scarf and a hat, and according to the officers, was walking back and forth in front of the restaurant, peering inside. The officers observed defendant walk around the corner of the building, enter a vestibule extension of the building, and cover his face with his scarf and hat so that only his eyes were visible. As defendant entered the restaurant, the officers followed.
Present in the restaurant were a patron, MacArthur Lee, Jr. (Lee), and a cashier, Camilli Rose (Rose). Lee and Rose were having a conversation. The officers observed defendant walk toward the restaurant counter and place his hand into his right coat pocket. The officers immediately grabbed defendant, and Lieutenant Mordaga removed a loaded revolver from defendant's right pocket. Detective Carroll patted down Lee, and permitted him to leave after determining there was no reason to believe he was involved.
At trial, Detective Carroll testified that defendant, after having been given warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), confessed that he found the gun behind the restaurant. An expert in the field of ballistics and firearms testified that the gun was operable and three of the bullets were hollow points.
Rose testified that at around 10:45 p.m. Lee asked to see an employee who was not present, and then asked to see the manager. Rose called for the manager, and sometime during her two to three minute conversation with Lee, defendant entered the premises. Rose stated that she paid no special attention to defendant when he entered, thinking Lee and defendant were together. Rose observed the officers enter the restaurant, wait for "a little bit," and then walk behind defendant and remove a gun. According to Rose, the manager entered the front of the restaurant after the gun had been removed. Rose testified that she never saw defendant remove the gun from his pocket and that he never said or did anything that threatened anybody. However, Rose was "shaken up" by seeing the gun the police removed from defendant's coat.
Thai Minter, the manager, testified that at around 10:45 p.m. he was in an office in the back of the restaurant preparing to close when Rose called him. When he entered the front of the restaurant, he saw defendant. Minter testified that he asked defendant if he needed help, at which point Minter saw defendant reach into his pocket and begin to pull something out. Minter then noticed the detectives and heard one of them say "he's going for his gun." Minter watched the detectives grab defendant and the gun. Minter claims that when the detectives grabbed defendant, the gun was already out of his pocket.
Defendant testified that he and Lee went to the restaurant together. According to defendant, Lee needed to "check on this job," and handed the gun to defendant. Defendant claimed that he argued with Lee about the gun, but eventually placed it in his pocket. Defendant testified that neither he nor Lee discussed robbing the restaurant. Defendant denied walking around the restaurant or peering through the windows before entering. Defendant admitted that he wrapped himself with his scarf before entering the restaurant, claiming that he did so to keep warm and because he has arthritis. He stated that he entered the restaurant behind Lee, and waited about five minutes for Lee to finish his conversation with Rose. At that point, according to defendant, the two detectives grabbed him from behind. Detective Mordaga felt his pockets, yelled "gun," and pulled out the gun.
Defendant claimed that he did not have his hand in his pocket, and that he never attempted to remove the gun or to rob the restaurant. Defendant testified that after Detective Mordaga removed the gun, he observed Lee and the officers laughing at him, which caused him to believe that he was set up.
Because defendant testified that he thought Lee and the police set him up, the trial court decided that it would charge the jury regarding entrapment. Based on that ruling, the trial court permitted the prosecutor to use defendant's prior unsanitized New York convictions for attempted robbery and robbery during cross-examination to prove predisposition. The jury was given an instruction limiting the use of the other crime evidence to rebut the defense of entrapment, not as "proof that he committed the offense for which he's being tried."
At the conclusion of the State's case, defendant moved for judgment of acquittal on the robbery count, noting that the State had failed to prove that anyone was threatened or placed in fear. The trial court denied the motion, concluding that the State was not obligated to prove actual fear by a victim, but instead was required to prove only that defendant intended to rob.
The jury found defendant guilty on all counts. His motion for judgment notwithstanding the verdict was denied. After denying the State's motion for an extended term, defendant was sentenced to twenty years with a ten-year period of parole ineligibility for first-degree robbery. Concurrent terms were imposed on the remaining unmerged counts.
In an unpublished opinion, the Appellate Division found three prejudicial errors. First, the State conceded that possession of hollow point bullets is a fourth-degree offense rather than a third-degree offense as stated in the judgment of conviction. The State agreed that a remand was required to correct that sentence.
Second, the Appellate Division ruled that the State presented insufficient evidence to convict defendant of robbery. The panel noted that although the State presented sufficient evidence from which a jury could infer that defendant was attempting to commit a theft, "[t]he evidence . . . is uncontroverted that while inside the restaurant, defendant never spoke to Rose, had any eye contact with her, or in any way indicated that he had a loaded gun and was about to commit a theft." The panel concluded that "the trial judge should have granted defendant's motion for a judgment of acquittal" as to the robbery charge.
The State argued, in the alternative, that if the appellate panel vacated the first-degree robbery conviction, the verdict should be molded to reflect a conviction for the lesser-included offense of second-degree attempted robbery. The panel rejected that argument and concluded that attempted robbery, as a matter of law, is not a cognizable offense under the Code, citing State v. Carlos, 187 N.J. Super. 406 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983); State v. Schenck, 186 N.J. Super. 236 (Law Div. 1982).
Third, the panel refused to mold the verdict to reflect a conviction for attempted theft because the trial court erred in charging entrapment, and as a result the State was improperly permitted to inquire into the nature of defendant's prior convictions. That error was compounded because defendant withdrew his defense of entrapment and "there was insufficient evidence in the record to establish either statutory or due process entrapment." According to the panel, permitting the jury to hear the details of the prior convictions "had the capacity to influence the jury's assessment of the merits" of the present charges of robbery and attempted theft. The panel found that because defendant admitted to illegal weapons possession, the other-crimes evidence did not have any prejudicial impact upon those convictions. The court remanded for a new trial on attempted theft and for resentencing for possession of hollow point bullets. We granted the State's petition for certification. 162 N.J. 488 (1999).
The State contends that because defendant had the intent and took substantial steps to commit a theft and threaten the cashier with the gun, defendant should be retried for attempted robbery. The State claims that it is illogical that "the fortuitous intervention of law enforcement . . . converted a first-degree robbery, and perhaps worse, into a third-degree attempted theft."
The State argues that the cases cited by the appellate panel, State v. Carlos, supra, and State v. Schenck, supra, are not on point. According to the State, both cases recognized that because common law attempted robbery is incorporated into N.J.S.A. 2C:15-1, if the sole uncompleted element of the robbery is theft, the crime committed under the Code is robbery because an attempted theft is sufficient. The State argues that "a[n] attempted robbery is not entirely subsumed in the robbery statute when a defendant, as here, takes a substantial step toward completing one of the other elements, e.g., threatening another with, or placing another in fear of, bodily injury."
The State also contends that a different Appellate Division panel in State v. Gonzalez, 318 N.J. Super. 527, certif. denied, 161 N.J. 148 (1999), seems to have presumed the existence of the offense of attempted robbery. Lastly, the State argues that "[g]ood police work . . . should not be discouraged by the prospect of convicting this defendant of a mere third-degree attempted theft."
Robbery is a first- or second-degree offense under the Code. The relevant sections of the robbery ...