On appeal from the Superior Court, Appellate Division, whose opinion is reported at 370 N.J. Super. 413 (2004).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Tyrone Gentry was convicted of second-degree robbery of a Rite-Aid drugstore in Camden. The events occurred on November 14, 2001. On that date, a store employee, Tiffany Davis, saw Gentry hiding cigars on his person and directed him to return the cigars and leave the store. When Davis was momentarily distracted, Gentry grabbed several boxes of cigars and ran to the front of the store. Davis claimed that Gentry charged her; he contended that he brushed by her.
In response to shouts from Davis, the store manager, David Lowe, intercepted Gentry at the front of the store. Grabbing Gentry's pants leg, Lowe was dragged out of the store onto the sidewalk. Although witnesses testified that Gentry punched, stomped, and kicked Lowe, Gentry testified that all he might have done was accidentally kick Lowe while trying to escape. Eventually, Gentry was subdued and arrested.
A Camden County grand jury indicted Gentry for second-degree robbery"in the course of committing a theft upon Rite Aid and/or Tiffany Davis and/or David Lowe." At trial, defense counsel argued that Gentry had committed, at worst, a simple assault. He argued that Gentry had not committed a robbery, which requires a purposeful or knowing use of force against another.
During the course of its deliberations, the jury sent the trial court a note indicating that although it was"unanimous" that Gentry had used force against another, some of the jurors believed that Gentry used force on Davis but not Lowe and others felt the reverse. The jury asked whether that constituted a"unanimous vote." The trial court responded that it did. Ten minutes later the jury returned a guilty verdict. Gentry was sentenced to an extended term of sixteen years, with an 85% parole ineligibility term under N.E.R.A.
On appeal, Gentry argued that he was denied due process based on the trial judge's unanimity ruling. A majority of the Appellate Division panel affirmed Gentry's conviction and sentence. Judge Donald Coburn dissented.
The Appellate Division majority concluded that the jury's role does not require its members to possess"a shared, detailed vision" of all of the facts to convict. Therefore, the identity of the"other" on whom force was used was deemed unimportant.
In his dissent, Judge Coburn concluded that the jurors had to agree unanimously on which acts were committee against which victim.
Gentry appealed to the Supreme Court as of right based on Judge Coburn's dissent.
The use of"force on another" is a critical element of robbery. In deliberating on a charge of that offense, the jury must agree unanimously on which acts were committed against which victim.
1. The judgment of the Appellate Division is reversed, substantially for the reasons expressed in the thorough and thoughtful dissenting opinion of Judge Coburn. (p. 5)
2. The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for further proceedings ...