On appeal from the Superior Court of New Jersey, Law Division, Essex County, 99-8-2935- I.
Before Judges Newman, Fall and Axelrad.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant, Shaun Grissom, appeals his criminal conviction for robbery and weapons offenses and seeks reversal and a new trial.
Tried to a jury, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1 (count one); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count two); third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5b (count three); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and fourth-degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3f (count five).
At trial, after the State rested, defense counsel moved for dismissal of the first-degree robbery charge, the fourth-degree aggravated assault charge, and the second-degree possession of a weapon for an unlawful purpose charge, or in the alternate, for instructions as to self-defense and as to the lesser-included offense of theft of services. The trial judge denied defense counsel's requests.
The trial judge sentenced defendant to sixteen years imprisonment for armed robbery with a No Early Release Act (NERA) minimum of thirteen years, seven months and nine days. Defendant received concurrent terms of five years for unlawful possession of a handgun and eighteen months for possession of hollow point bullets. The other charges were merged into the armed robbery conviction.
According to the trial testimony, this case involved a theft of a taxi cab fare which turned into a first-degree robbery when defendant pulled a handgun on the taxi driver. Defendant asked the taxi driver, Pierre Loradin, to drop him off at the Valley Fair Supermarket entrance inside the gate, near the intersection of Colt Street and Chancellor Avenue in Irvington. Prior to arriving there, defendant asked the driver to let him out at the corner, about forty to fifty feet before the entrance to the market. The driver pretended he did not understand defendant and dropped him at the originally-requested destination inside the gate at Valley Fair, explaining at trial that it was his practice to drop off passengers where other people are present. The driver demanded a fare of $6, at the rate of about one dollar a block since the cab does not have a meter. Defendant claimed he only had $5 and appeared to look through his pockets for the fare.*fn1 Then he abruptly exited the cab without paying the fare and began walking away, turning the corner in the direction of "the back of Valley Fair."
The driver followed defendant in his cab, and upon reaching him, without exiting the vehicle, asked "where is the money?" Defendant then pointed a handgun at the taxi driver's face and asked, "are you looking for money?" The driver pulled away.
Within a block of the supermarket, the taxi driver flagged down an Irvington police officer and told her what had happened. She followed the cab driver to the supermarket. The officer spotted defendant crouched at the rear of a van parked near an intersection. When defendant saw her turning, he ran but was eventually apprehended. Defendant was identified by the driver at the scene. The officers found no weapons on defendant. A post- arrest search of the area yielded discovery of a 9mm handgun with a hollow point round in the firing chamber and other hollow point rounds in the magazine in the rear wheel of the van where the officer first saw defendant.
About four hours earlier that morning an Irvington police officer searched a car pursuant to an unrelated charge against defendant that was not at issue in this case, and in the glove compartment found a 9mm magazine with ten rounds of 9mm ammunition. The car was registered to defendant. Defendant had no permit to carry a handgun.
On appeal, defendant seeks reversal of his convictions on the following grounds:
THE TRIAL COURT DENIED APPELLANT A FAIR TRIAL IN ADMITTING OTHER CRIMES EVIDENCE ABSENT ANY INSTRUCTION TO THE JURY RESPECTING THE PROPER CONSIDERATION OF IT.
THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY AS TO THE DEFENSE OF SELF-DEFENSE.
THE TRIAL COURT'S ERROR IN REFUSING TO CHARGE SELF-DEFENSE INDUCED ITS ADDITIONAL ERROR IN REFUSING TO CHARGE THE LESSER-INCLUDED OFFENSE OF THEFT OF SERVICES.
The State's position in this case was that the theft of services was turned into a robbery when defendant drew a handgun and pointed it at the taxi driver. Defendant does not claim error in the judge's decision to give an armed robbery instruction. He contends that the trial court committed reversible error in denying his request to also charge theft of services, N.J.S.A. 2C:20-8, as a lesser-included offense of first-degree robbery. Defendant concedes that there was more than ample evidence for a theft conviction, but urges that the theft was complete when he exited the cab so there was a rational basis to acquit him of armed robbery.
Accordingly, the jury should have been given the opportunity to find a lesser-included offense. We agree and reverse defendant's robbery conviction (count one) and remand for a new trial. We affirm the other convictions.
To be considered a lesser-included offense, a crime must either be established by proof of the same or less than all the facts used to establish the greater charge, N.J.S.A. 2C:1-8d(1), or it must differ from the crime charged only through a lower degree of risk of injury to the victim or a lower degree of culpability of the defendant, N.J.S.A. 2C:1-8d(3). See, e.g., State v. Smith, 136 N.J. 245, 249-50 (1994).
The applicable standard for determining whether the trial court should charge a jury with respect to a lesser-included offense is set forth in N.J.S.A. 2C:1-8e of the New Jersey Code of Criminal Justice:
The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.
In State v. Crisantos, 102 N.J. 265, 277 n. 10 (1986), the Court interpreted N.J.S.A. 2C:1-8e, consistent with the Model Penal Code, to also require a rational basis to acquit of the greater charge. The Official Comment ...