On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-10-1755.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2008
Before Judges Lisa and Reisner.
Defendant was charged alone in a one-count indictment with second-degree robbery, N.J.S.A. 2C:15-1, for purposely putting James Steiner in fear of immediate bodily injury in the course of committing a theft. Defendant was one of four perpetrators, and he was not the one identified as the principal. The principal's identity is unknown and he was never apprehended. The other two perpetrators were juveniles and thus were not part of this criminal proceeding. The State's case against defendant relied heavily on a theory of accomplice liability. In addition to robbery, the court submitted to the jury the lesser-included offense of third-degree theft from the person, N.J.S.A. 2C:20- 2b(2)(d). The jury convicted defendant of robbery, and the court imposed a sentence of six years imprisonment with an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant argues on appeal:
POINT I THE ACCOMPLICE-LIABILITY CHARGE WAS NOT TAILORED TO THE FACTS OF THE CASE, AND FAILED TO EXPLAIN HOW THE ACCOMPLICE THEORY APPLIED TO THE LESSER-INCLUDED OFFENSE. (Not Raised Below).
POINT II THE SENTENCE IS EXCESSIVE BECAUSE THE COURT FAILED TO CONSIDER ALL THE RELEVANT MITIGATING FACTORS.
We agree with Point I. We conclude that the error was not harmless, and we therefore reverse. Accordingly, we need not address Point II.
Steiner took a commuter train from his place of employment in Manhattan and arrived at Journal Square in Jersey City at about 1:00 a.m. on August 25, 2006. As he walked along the street attempting to find a cab to take him home, he was approached by a man in a dark shirt who asked him for some money. Steiner said no and kept walking. The man followed him and Steiner soon realized there were three other men nearby who were also coming towards him. The man in the dark shirt pushed Steiner "a little bit," and Steiner kept walking. The man eventually got in front of Steiner, pushed him on the chest and stopped him. He said, "No I don't think you understand, I'm not really asking for money. Give me your -- give me your wallet." At that point, the other three men came up from behind Steiner, who was now surrounded by all four men. Steiner reached into his pocket to remove currency that was held in a money clip. His hand "was kind of stuck and it was taking a little bit of time." The man in the dark shirt "started getting agitated" and said, "Come on this guy's taking too long, pop this guy." Steiner interpreted that comment to mean that someone in the group had a weapon and "was going to pull it out and do something to [him], or hit [him] or something, some type of violence obviously." At that point, one of the three men who came as a group, later identified as defendant, said to Steiner "Come on, hurry up." The man in the dark shirt then walked behind Steiner and grabbed his wallet out of his back pocket. At about the same time, Steiner pulled his hand out of his pocket with the cash, and defendant grabbed it from him. The assailants immediately left the scene.
This episode was captured on a closed circuit television system maintained by the Jersey City Police Department. Multiple cameras are strategically placed around Jersey City and are monitored by the police. An officer observed this incident on a monitor and alerted officers in the area, who promptly responded to Steiner's location. The three men who joined the incident as a group were immediately apprehended and identified by Steiner. The man in the dark shirt was not apprehended and has not been identified.*fn1
At trial, the State relied upon Steiner's testimony and the video tape captured by the closed circuit television system. Defendant did not testify or call any witnesses. His attorney argued in summation that the State failed to prove that a robbery occurred. He did so by attacking Steiner's credibility and by suggesting that Steiner did not appear on the video*fn2 to be in fear for his safety. Alternatively, counsel argued:
Whether or not you want to believe there was a theft of the person here, whether you want to believe that he was like not part of like whoever it was, that first guy who's there with the victim, the guy in the dark [shirt] who took his wallet . . . .
With respect to the State's accomplice liability theory, defense counsel argued:
And that's why we're here today, to present to you the reality that there was no robbery that night of Mr. Steiner. If there was a robbery that night, it was by somebody other than [defendant]. Whoever that person was that he was in the company with, whatever was going on between the two of them, be it a robbery, be it something like, I don't know. We'll never know. But whatever it was, it didn't involve this gentlemen right here.
Thus, the primary defense argument was that the State failed to prove beyond a reasonable doubt that any of the perpetrators threatened or purposely put Steiner in fear of immediate bodily injury, thus falling short of its proofs that a robbery occurred. See N.J.S.A. 2C:15-1a(2). Alternatively, the defense argued that if the man in the dark shirt threatened or put Steiner in fear of immediate bodily injury, defendant did not share a purpose to do so and could be convicted of nothing more than theft from the person.
In his summation, the prosecutor argued:
Accomplice liability in this particular case essentially means a person would be responsible for the conduct of another if they had this common plan, this common scheme going on. It was their share[d] idea to do something.
In this particular case, what was their shared idea? It was to rob Jaime Steiner.
The prosecutor then played the video tape for the jury after which he described the events depicted on the tape, all of which was consistent with ...