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State v. Nero

June 30, 2008

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
KENNETH NERO, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 393 N.J. Super. 316 (2007).

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 of a conviction for first-degree robbery involving the threat of harm from a simulated weapon, the Court considers whether there is a state of mind requirement for the simulated weapon portion of the criminal charge and, if so, whether the jury instructions properly advised the jury of that requirement.

In March 2003, Defendant Kenneth Nero entered a restaurant, approached a patron, and put his hand on the patron's purse strap. When the patron asked Nero what he was doing, he placed his hand in the area of his waist and replied, "do you know what I've got here? I'll take your shit." Nero and the patron struggled over the purse, and a second patron joined the struggle. Nero stated that he would take the second patron's purse as well and pushed her. A fight ensued, and Nero punched the second patron in the eye. The two patrons fled the restaurant and telephoned the police. Nero tried to pursue the patrons, but engaged in a scuffle with a third patron in the doorway.

A two-count indictment charged Nero with first-degree and second-degree robbery. At trial, the judge instructed the jury on the elements of both crimes. In respect of first-degree robbery, the judge charged the jury with finding whether, while committing a theft, Nero "knowingly inflicted bodily injury or used force upon another and/or threatened another with or purposely put her in fear of immediate bodily injury; and . . . threatened the immediate use of a deadly weapon." After defining the term "purposely," the judge turned to the State's allegation that Nero had simulated possessing a weapon. The judge explained that a first-degree robbery conviction would require that the jury find beyond a reasonable doubt that Nero's words or conduct or words and gestures created a reasonable belief in the victim that he possessed a deadly weapon capable of causing death or serious bodily injury. Nero did not object to the court's charge. The jury convicted Nero of first-degree robbery and simple assault as a lesser-included offense of second-degree robbery.

Nero appealed the first-degree robbery conviction, alleging for the first time that the jury charge did not set forth the required mental state for simulation of a weapon. The Appellate Division agreed that the jury charge as given, without an explicit and separate mental state element for the simulated possession of a weapon, constituted plain error warranting reversal. The panel remanded the matter for a new trial. 393 N.J. Super. 316 (2007).

The Court granted the State's petition for certification. 192 N.J. 296 (2007).

HELD: To convict a defendant of first-degree robbery involving the threat of the immediate use of a deadly weapon by simulation, the jury must find that the simulation was undertaken with a purposeful state of mind. The trial court's jury instructions sufficiently imparted the requisite mental state.

1. When a defendant has failed to object contemporaneously to a jury charge, a plain error standard applies to the appellate court's review. Plain error requires a demonstration of legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and creating a clear capacity to bring about an unjust result. The error is viewed in the totality of the entire charge, not in isolation, and the analysis takes into account the overall strength of the State's case. Because Nero did not object to the jury instructions as given, the Court applies the plain error standard. (P. 12).

2. Specific intent is required to find a defendant guilty of first-degree robbery and the jury must be charged to that effect. That proposition is supported by the wording of Nero's indictment, which charged him with purposely threatening the immediate use of a deadly weapon, and by the robbery statute, N.J.S.A. 2C:15-1(b), which defines robbery as a crime of the first degree if "in the course of committing the theft the actor . . . purposely . . . threatens the immediate use of a deadly weapon." In a previous case, this Court held that the simulated use of a deadly weapon also can provide a sufficient factual basis for conviction of first-degree robbery. The Court concludes here that, under the terms of the robbery statute, such a simulation must be done purposely. Recent changes to the Model Jury Charge are consistent with this conclusion. (Pp. 13-14; 18-19).

3. When viewed as a whole, the jury charge properly conveyed the notion that the jury had to find that Nero purposely threatened his victim with the immediate use of a deadly-albeit simulated-weapon. The trial court instructed the jury on the elements of second-degree robbery as well as the additional element of threatening the immediate use of a deadly weapon, explaining that the coalescence of those elements would enhance the charge to a first-degree crime. The court explained that every crime contains within it as an element a certain mental state and it defined the mental state of "purposely" both at length and by repeating the precise statutory definition. After setting that foundation, the judge informed the jury that, in respect of the simulated weapon robbery charge, the State was required to prove beyond a reasonable doubt that Nero threatened the immediate use of a deadly weapon and engaged in conduct or gestures that would lead a reasonable person to believe that he possessed an object that would constitute a deadly weapon. Further, the judge specifically instructed the jury that the term "to simulate" means a feigned, pretended act. The Court finds that, by definition, pretended acts are purposeful, not accidental. (Pp. 15-16).

4. The Court finds also that the plain error standard is not met in this case because the proofs at trial, when viewed in the light most favorable to the State, were sufficient to satisfy the jury that Nero simulated possessing and reaching for a weapon in the act of trying to commit a theft. Although only the first patron described the acts that she understood to mean Nero was armed, both patrons testified that Nero sought to steal the purse and that, after they fled to the safety of their car, Nero chased after them, only to get into an altercation with yet another patron. (P. 16-17).

5. In summary, when viewed as a whole, the jury instructions were sufficient to impart the need to find that Nero's acts in threatening the immediate use of a deadly weapon, even if only simulated, had to be purposeful. (P. 17).

The judgment of the Appellate Division is REVERSED, and the first-degree robbery conviction and sentence are REINSTATED.

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

The opinion of the court was delivered by: Justice Rivera-soto

Argued March 10, 2008

The robbery statute provides in part that "[r]obbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor . . . threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). The simulated use of a deadly weapon also "can provide a sufficient factual basis for conviction of first-degree robbery" when there is "[a]n unequivocal or unambiguous simulation of a weapon possessed, as well as an ambiguous or equivocal gesture coupled with threatening words that complete the impression of a concealed weapon[.]" State v. Chapland, 187 N.J. 275, 292 (2006).

According to the Appellate Division, the robbery statute does not explicitly set forth the mens rea or state of mind element required to convict on the charge of robbery by use of a simulated weapon. State v. Nero, 393 N.J. Super. 316, 324 (App. Div. 2007). Applying the Code of Criminal Justice's "gap-filler" provision, N.J.S.A. 2C:2-2(c)(3), the panel concluded that "[w]here a statute does not expressly designate a culpable mental state, but . . . 'necessarily involves such culpable mental state,' the gap-filler provision of the Code imputes a mental state of knowingly." Ibid. (quoting N.J.S.A. 2C:2-2(c)(3)). It thus held that "the simulation element [of the first-degree robbery statute] requires a mens rea." Ibid.

This appeal requires that we address whether there is a mens rea or state of mind requirement for the simulated weapon portion of a first-degree robbery charge. We conclude that, because "[t]heft is a specific intent crime [and i]t follows that robbery, as an aggravated form of theft, is a specific intent crime as well[,]" State v. Lopez, 187 N.J. 91, 98 (2006) (citations omitted), and based on the language of the statute itself, a "purposeful" state of mind is required for first-degree robbery by use of a simulated weapon. Thus, inasmuch as the jury charge as a whole in this case fairly instructed the jury of that requirement, defendant's first-degree robbery conviction is reinstated.

I.

In the early morning hours of Sunday, March 9, 2003, Rakema Nelson and Travell Zimmerman entered a busy late-night food service/restaurant in Paterson after attending a party. Nelson carried a small purse around her arm, which was open while she waited in line, while Zimmerman stood behind her, engaged in conversation with another restaurant patron.

Defendant Kenneth Nero entered the restaurant alone and made an "off comment" to Zimmerman, who ignored him, and continued talking to the other patron. Defendant then approached Nelson and asked what was in her purse. When Nelson ignored that question, defendant put his hand on the purse's strap. Nelson asked defendant what he was doing and, placing his hand in the area of his waist, he replied, "do you know what I got right here? I'll take your shit." According to Nelson, she "just wasn't really thinking anything of it. [She] was just trying to ignore him, because [she] didn't really know what [defendant] was doing." Nelson described that defendant "wouldn't let go of [her] purse[,]" and that they "were going back and forth[ and h]e was tugging and [she] was tugging" on the purse. She explained that "[b]ecause he was motioning to his waistband, asking [her] if [she] knew what he had[,]" she was in fear yet could not move away because she was trapped against the service counter.

At that point, Zimmerman intervened. She told defendant to leave and then put her own purse on the counter "to have two loose hands, free hands . . . [b]ecause [she] didn't know his mindset." According to her testimony, defendant "was very hostile and [she] didn't know what was going to occur." As a result of that confrontation, defendant told Zimmerman that he would "take [her] stuff too." She explained that, although defendant did not attempt to take Zimmerman's purse, "he pushed [her]. [She] ...


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