On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0424.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Cuff and Lihotz.
Defendant Sadiq Arnold appeals from his conviction for second-degree robbery, N.J.S.A. 2C:15-1, and from the ordered ten-year sentence, accompanied by a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, parole ineligibility period. On appeal defendant argues:
THE DEFENDANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL WHEN THE TRIAL COURT FAILED TO CHARGE THEFT FROM THE PERSON AS A LESSER-INCLUDED OFFENSE OF ROBBERY. (U.S. CONST. AMENDS. V, VI AND XIV; NEW JERSEY CONST. (1947), ART. I, PARS. 1, 9 AND 10). (Partially Raised Below).
THE DEFENDANT'S MAXIMUM BASE SENTENCE OF TEN YEARS WITH 85% OF SUCH TERM TO BE SERVED PRIOR TO BECOMING ELIGIBLE FOR PAROLE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
At 6 p.m., on August 24, 2005, Elizabeth Ogunbanjo waited for a bus at the intersection of Chestnut and Broad Streets in Newark. Defendant approached Ogunbanjo seeking directions. She ignored him. Defendant then grabbed Ogunbanjo's neck "trying to take off [her] chain." The chain broke and fell into her shirt. Following a struggle between the two, defendant grabbed Ogunbanjo's earring and fled. A patrolman was alerted and defendant was apprehended. Ogunbanjo suffered scratches to her neck and chest. Her cousin rendered first aid; her injuries did not require further medical attention.
During the charge conference, the defense sought a jury charge on the lesser included offense of theft. A discussion regarding the correct charge ensued, including a statement by the prosecutor that the charge would be "theft from a person." The parties agreed the State need not prove the value of the property taken for a third-degree "theft from the person of the victim" conviction. N.J.S.A. 2C:20-2(b). Thereafter, each attorney advised the court that the charge, as proposed, was acceptable without addition.
In charging the jury, the trial judge followed the model charge for second-degree robbery. See Model Jury Charge (Criminal), "Robbery in the Second Degree" (2005). Consistent with the model charge, the judge instructed the jury that the State had the burden to prove beyond a reasonable doubt each element of the substantive offense of robbery, including the elements of force and theft. A reference at footnote eight of the charge states: "For theft from the person where the amount of force does not elevate the charge to robbery, see Model Jury Charge for N.J.S.A. 2C:20-3a (theft of moveable property)." Ibid.
The Model Jury Charge addressing the gradation of theft offenses lists additional provisions when the theft amount determines the grading of the offense. See Model Jury Charge (Criminal), "Gradation Of Theft Offenses Dependent On The Amount Of Money Or Value Of Property Involved" (2003). The model charge ends with a note providing additional language to use "when grading is dependent on the amount of ...