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State v. Lopez

June 1, 2006

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOSE A. LOPEZ, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 378 N.J. Super. 521 (2005).

SYLLABUS BY THE COURT

(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).

In this appeal, the Court considers whether N.J.S.A. 2C:15-1(a) encompasses so-called "afterthought" robbery -- the situation in which a defendant does not formulate the intent to steal until after force is used.

On March 17, 2002, Luis Rendon was found dead in the Rockaway River as a result of blunt force trauma to the throat and immersion in water. Defendant, Jose A. Lopez, was arrested and charged with purposeful/knowing murder, felony murder and robbery. After a night of drinking, a physical altercation took place between Rendon and Lopez, the exact nature which is at issue. The State's version was that Lopez lured Rendon, who had been wearing a considerable amount of jewelry and buying Lopez drinks, to the nearby railroad tracks to rob him, attacked him with a karate chop to the throat, stole his necklace and left him to die. Lopez claimed that after Rendon repeatedly propositioned him for sex, they left the bar and walked toward the railroad tracks. Rendon eventually threatened Lopez, stating that Lopez would have sex voluntarily or by force. A brawl ensued in which Rendon lurched at Lopez who countered with a blow to Rendon's throat. Rendon fell face down into the water. Lopez then decided to steal Rendon's necklace, and took it from his neck. He looked into Rendon's wallet, found it to be empty, and tossed it aside.

The State requested that the judge charge the jury that the intent to commit a theft may be formed either before the use of force or after, so long as the theft and the use of force could be considered to constitute a single transaction. Ultimately, the trial judge recognized afterthought robbery and instructed the jury, explaining ".it makes no difference whether the intent to steal was formulated before the use of force or after it, so long as the intent to steal and the use or threat of force can be found as constituting a single transaction." Lopez objected to the afterthought concept. The jury later requested clarification regarding the single transaction language. The judge instructed them again. Lopez again objected. Lopez was acquitted of purposeful/knowing murder, convicted of the lesser-included offense of second-degree reckless manslaughter, acquitted of felony murder, and convicted of second-degree robbery.

Defendant appealed. In a published opinion, the Appellate Division determined that the robbery statute does not include afterthought robbery and that the jury instruction and reinstruction that suggested otherwise were fatally defective. The panel reasoned that because Lopez was acquitted of felony murder, which requires the victim's death to occur "during the commission" of robbery or in flight therefrom, the jury must have based the conviction for robbery on the afterthought concept. As such, the conviction could not stand. The panel molded the verdict and remanded the case to the trial judge to enter a judgment of conviction on the lesser-included offense of third-degree theft from the person.

The Supreme Court granted Lopez's petition for certification.

HELD: N.J.S.A. 2C:15-1(a) does not encompass afterthought robbery as the intention to steal must precede or be coterminous with the use of force.

1. Theft is a specific intent crime. Robbery, as an aggravated form of theft, is a specific intent crime as well. Without the intention to steal evidenced by a theft or attempted theft, there can be no robbery. To elevate theft to robbery, the intimidating or assaultive conduct must occur "during the theft or attempted theft or in immediate flight therefrom." It follows that intimidating or assaultive conduct that is unrelated to a theft cannot elevate the theft to robbery. (pp. 8-11).

2. The State argues incorrectly that the legislative history of the robbery statute reveals an attempt at a general broadening that should be read to incorporate afterthought robbery. While the Legislature did broaden the application of the robbery statute in certain respects, there is no indication that it intended to alter the fundamental nature of robbery, the focus of which is the use of violence to effectuate a theft or flight therefrom. (pp. 11-12)

3. The State also relies on out-of-state case law that recognizes afterthought robbery. Because statutory and common-law language governing robbery in most states differs considerably from the language of N.J.S.A 2C:15-1(a), out-of-state case law on the subject of afterthought robbery is not directly on point. (pp. 13-14)

4. N.J.S.A. 2C:15-1(a) requires that the threats or violence be carried out in furtherance of the intention to commit a theft. Indeed, the sequence of events is critical; the intention to steal must precede or be coterminous with the use of force. That is why a person who has stolen goods and thereafter uses violence in flight is guilty of robbery-the intention to commit the theft generated the violence. That model simply does not work where a violent fracas occurs for reasons other than theft, and the perpetrator later happens to take property from the victim. In the former example, the theft is the reason for the violence and a robbery has occurred. In the latter, the violence and the theft are unconnected, and the perpetrator is guilty of assault and theft but not robbery. (pp. 14-15)

5. The instruction and reinstruction by the trial court, which suggested an afterthought robbery crime that does not exist, require a reversal of the robbery conviction. The State's evidence and theory that Lopez lured Rendon to the train tracks to rob him, if believed by a jury, would support a conviction for robbery under N.J.S.A. 2C:15-1(a). Because there was sufficient evidence to create a jury issue on robbery, molding the verdict to the lesser offense of theft was unwarranted. (pp. 15-17)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the matter is REMANDED for further roceedings consistent with this opinion.

CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE LONG's opinion.

The opinion of the court was delivered by: Justice Long

Argued March 7, 2006

The primary issue on this appeal is whether N.J.S.A. 2C:15-1(a) encompasses so-called "afterthought" robbery--the situation in which a defendant does not formulate the intent to steal until after force is used. Like the Appellate Division, we have concluded that N.J.S.A. 2C:15-1(a) does not encompass afterthought robbery.

I.

On March 17, 2002, Luis Rendon was found dead in the Rockaway River as a result of blunt force trauma to the throat and immersion in water. Defendant, Jose Lopez, was arrested and charged with purposeful/knowing murder, N.J.S.A. 2C:11-3(a)(1)-(2); felony murder, N.J.S.A. 2C:11-3(a)(3); and robbery, N.J.S.A. 2C:15-1(a). The facts elicted during the trial are detailed in the decision below and need not be recounted here in full. State v. Lopez, 378 N.J. Super. 521, 526-28 (App. Div. 2005). Briefly, after a night of drinking, a physical altercation took place between defendant and Rendon that resulted in Rendon's death. At issue is exactly what transpired between them. The State's version was that defendant lured Rendon, who had been wearing a considerable amount of jewelry and buying defendant drinks, to the nearby railroad tracks to rob him, attacked him with a karate chop to the throat, stole his necklace, and left him to die.

Defendant's version was entirely different. He claimed that after Rendon repeatedly propositioned him for sex, they left the bar and walked toward the railroad tracks. Rendon eventually threatened defendant, stating that defendant would have sex voluntarily or by force. A brawl ensued in which Rendon lurched at defendant who countered with a blow to Rendon's throat. Rendon fell face down into the water.

Defendant then decided to steal Rendon's necklace, and took it from his neck. He looked into Rendon's wallet, found it to be empty, and tossed it aside.

The State requested that the judge charge the jury that the intent to commit a theft may be formed either before the use of force or after, so long as the theft and the use of force could be considered to constitute a single transaction. The State relied on out-of-state authority to that effect, but acknowledged that there was no New Jersey case law on the issue. During the charge conference, the trial judge ...


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