On certification to the Superior Court, Appellate Division, whose opinion is reported at 396 N.J. Super. 392 (2007).
(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 defendant was entitled to a jury instruction on theft as a lesser-included offense of robbery. In addition, the Court addresses the trial court's determination to sentence defendant to two concurrent, maximum sentences on these second-degree robbery convictions.
On February 2, 2004, defendant took a cab to the Cape Savings Bank in Atlantic City. Defendant entered the bank, instructing the driver to wait. Defendant, who is almost six and one-half feet tall, approached a teller window. The bank's tellers were separated form the public by a solid counter topped with bullet-proof glass to a height of at least seven feet. Defendant handed the teller a blank withdrawal slip. The teller asked defendant if he had an account at the bank and he replied "no," and the teller stated that she could not give him money. Defendant then said, "Please hurry up. I know how to get it." The teller stated that she was sensing something was wrong with the gentleman, and he repeated "hurry up." The next moment, defendant jumped over the glass window and dropped onto the teller's counter top. The teller dropped the keys and ran, locking herself into an adjacent room. She later explained that she "was so scared I thought he would kill me." This account was corroborated by three other tellers as well as a customer in the bank.
Defendant removed $2,410 from the drawer, jumped back over the bullet-proof glass partition, left the bank and got back into the cab. He instructed the cab driver to take him to an automobile dealership where, in the course of trying to steal a car, he assaulted a car salesman. Defendant was arrested at the car lot.
A grand jury returned an indictment charging defendant with two counts of second-degree robbery. Defendant's trial strategy was to assert that he had been misidentified, and that it was not he who robbed the bank. As a fall-back, defendant maintained that, if the jury determined that he had been in the bank, he was guilty only of theft and not robbery because he did not physically threaten the teller.
At the close of the evidence, defendant requested that the court charge the jury on theft as a lesser-included offense of robbery. He argued that the statute requires that in committing a robbery, the defendant must put another into fear of immediate bodily injury. Defendant asserted there was no immediate harm or threatened or implied harm to the teller if she did not comply with his request for money. The trial court rejected the request. It noted the common understanding that people who go into a bank to take money are prepared to hurt people. The trial court highlighted the teller's testimony that she was scared for her life. It further reasoned: "And to say that under those facts and circumstances that she wasn't threatened or purposely put in fear of immediate bodily injury when a six foot five person scales a seven and a-half foot glass wall to go over into the money drawer is, is absolutely ludicrous." The jury found defendant guilty of both robberies. Defendant was sentenced to the maximum term of ten years on each robbery, the sentences to run consecutively. Thus, defendant received an aggregate sentence of twenty years imprisonment, with a period of parole disqualification of seventeen years.
Defendant appealed, and the Appellate Division, in a split decision, reversed the conviction for the robbery of the bank teller. Although it concluded that the evidence was more than adequate to support the jury verdict, the panel concluded that the denial of the request for an instruction on the lesser-included crime of theft was error because there was a rational basis for acquittal of robbery based on "the absence of the requisite purpose to put the teller in fear of immediate bodily injury." The panel also remanded defendant's sentence on the car salesman robbery conviction, finding insufficient support in the record for the finding of an aggravating factor and the rejection of defendant's mitigating factors. Judge Fuentes dissented on the reversal of the robbery of the bank teller, noting that to succeed with the crime, defendant was required to overcome the glass partition and to chase away the teller who was standing between him and the money. Judge Fuentes found defendant's conduct to be unambiguously threatening and palpably egregious.
The State filed an appeal as of right based on the issue presented in Judge Fuentes's dissent. The Supreme Court also granted the State's petition for certification for review of the remand of defendant's sentence.
HELD: There was no rational basis for a jury instruction on theft as a lesser-included offense to robbery where, in committing the crime, defendant threatened a bank teller by demanding money and then, when the money wasn't produced, vaulted a seven-foot partition into the teller's area, causing the teller to flee for her life. In addition, there was no reversible error in the trial court's consideration and weighing of aggravating and mitigating factors.
1. When a defendant requests a lesser-included offense charge, the question is whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict defendant of the lesser. The trial court properly focused on that question. After listening to the testimony, assessing the credibility of witnesses, and viewing the video tape of the robbery, the trial court rejected defendant's request for a theft charge, reasoning that to state that the facts supported anything other than a robbery conviction "is absolutely ludicrous." The Court's independent review of the record compels it to agree. The facts were clear and unequivocal: defendant entered a bank, spoke menacingly to a teller and demanded money; defendant vaulted a bullet-proof glass partition, landing on the inside portion where the teller stood; and the teller, fearing for her life, fled. The succinct and pointed observation of the dissenting judge in the Appellate Division speaks volumes: "This was a bank robbery: plain and simple. In my view, no rational jury could come to any other conclusion." The Court rejects as unfounded the Appellate Division's conclusion that there was a rational basis for acquitting on the bank teller robbery. (pp. 14-17)
2. A dominant goal of the New Jersey Code of Criminal Justice is uniformity in sentencing. That goal is achieved through the careful application of statutory aggravating and mitigating factors. A judge is required to justify the sentence by referencing those factors. An appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record. An application of those principles here yields the conclusion that, notwithstanding any perceived harshness in the sentence imposed, the sentencing court properly weighed and considered the relevant aggravating and mitigating factors. In addressing the imposition of consecutive sentences, the trial court noted that the two crimes were predominantly independent of each other; each involved separate acts of violence or threatened violence against separate victims; and the crimes were committed at different times. In determining to give defendant the top range on each robbery conviction, the trial court noted the following aggravating factors: the risk that defendant would commit another crime; the extent of his prior criminal record and seriousness of the offenses; and the need to deter defendant and others. In contrast, the trial court rejected all of defendant's arguments on mitigating factors and found none applicable. Although the imposition of consecutive maximum sentences may, at first blush, appear harsh, one cannot quarrel with the sentencing court's methodology and conclusions. Under such circumstances, the sentencing court's exercise of discretion must be sustained unless the sentence "shocks the judicial conscience." Defendant's sentences, albeit lengthy, do not cross that threshold. (pp. 17- 25)
The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part, and defendant's convictions and sentences are REINSTATED.
JUSTICE LONG filed a separate, DISSENTING opinion, in which JUSTICES ALBIN and WALLACE join, expressing the view that the trial court was required to include a theft charge in the jury instruction because there is evidence in the record that casts doubt on whether defendant purposely put the bank teller in fear of immediate bodily injury in the course of stealing the money.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and HOENS join in JUSTICE RIVERASOTO's opinion. JUSTICE LONG filed a separate, dissenting opinion, in which JUSTICES ALBIN and WALLACE join.
The opinion of the court was delivered by: Justice Rivera-soto
Defendant Marcus Cassady was convicted of two counts of second-degree robbery -- one involving a teller at a bank and the second involving a salesman at a car dealership -- in violation of N.J.S.A. 2C:15-1. He was sentenced to two consecutive ten-year terms of imprisonment, for an aggregate of twenty years' incarceration, subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2. Although concluding that the evidence presented in respect of the robbery of the bank teller was sufficient to sustain a second-degree robbery conviction, State v. Cassady, 396 N.J. Super. 392, 397 (App. Div. 2007), the Appellate Division nevertheless held that, in respect of that conviction, defendant was entitled to an instruction on theft as a lesser-included offense of robbery and, hence, defendant's conviction for second-degree robbery of the bank teller was reversed and remanded. Id. at 399. The panel also determined that the sentencing judge incorrectly considered and weighed the aggravating and mitigating factors concerning defendant's sentence for his conviction for the second-degree robbery of the car salesman, and thus remanded that sentence for reconsideration. Id. at 402.
We conclude that the trial court properly denied defendant's request for a jury instruction concerning the lesser-included offense of theft on the bank teller robbery count because, in the circumstances presented, there was no rational basis for a theft charge. We also conclude that the Appellate Division erred when it remanded defendant's sentence on the car salesman robbery charge. We therefore affirm in part and reverse in part the judgment of the Appellate Division, and reinstate defendant's convictions and sentence.
On February 2, 2004, defendant took a cab to the Cape Savings Bank located on Pacific Avenue in Atlantic City. Once there, defendant instructed the cab driver to wait while defendant entered the bank. Defendant, who is almost six and one-half feet tall, approached a teller window; in that bank, tellers are separated from the public by a solid counter topped with bullet-proof glass to a height of at least seven feet, and each teller stands on the enclosed side of the counter, in front of the cash drawer and facing the customer across the counter. He handed a withdrawal slip to the teller. That withdrawal "slip ha[d] nothing written on it, no name, no account number, no date, no signature, nothing except only the amount five thousand dollars." The teller "looked at him strangely and said [']Sir, do you have an account in this bank?[']" When defendant replied "no," the teller stated that she could not give the money to him. She testified as follows:
Then he said, ["]Please hurry up. I know how to get it.["] Still I was not doing anything and I was really shivering. At that point I was sensing something is wrong with this gentleman, and when I was waiting and thinking as to what to do, he said loudly, ["]Hurry up. I know how to get it,["] that's all I heard. The very next moment he jumped [over] the glass window, the bullet proof glass window and dropped [o]nto my counter top. That's all I know. I got scared and I dropped the keys and ran. I don't know how I did it. I ran back into the room adjacent where we have the automatic teller machine room and I locked myself into the room.
She further explained that she ran because she "was so scared I thought he would kill me." Conceding that defendant's actions were all directed towards seizing the money in the teller drawers and that defendant did not physically threaten to do the teller harm, she asked, "[h]ow can I guess that he is going to take only the money? He might do something to me..... Harm me or [k]ill me." She explained: "That's why I got scared -- to death. And I didn't know what I was doing and I don't know how I ran into the other room." The teller's account was corroborated by three other tellers who also were on duty at that time,*fn1 as well as by a customer then in the bank.
After taking $2,410, defendant jumped back over the bullet-proof glass partition, left the bank*fn2 and got back into the waiting cab. He instructed the cab driver to take him to an automobile dealership where, in the course of trying to steal a car, he assaulted a car salesman. Although injured, the car salesman fought defendant to a draw, and defendant was arrested at the car lot.*fn3
The Atlantic County grand jury returned an indictment charging defendant with two counts of second-degree robbery, in violation of N.J.S.A. 2C:15-1. Defendant's trial strategy was two-fold. First, defendant asserted that he had been misidentified, that it was not he who robbed the bank. As a fall-back position, defendant maintained that, if the jury determined he in fact had robbed the bank, then he was guilty only of theft and not robbery because he did not physically threaten the teller. Thus, during opening statements, defense counsel stated to the jury that "robbery actually means that somebody takes something from somebody else using force or threats of force, that is a very important concept to keep in mind." He urged to the jury that "there [are] very interesting principles that you have to keep in mind when you listen to this case. Was there a robbery or theft... of property?" Defendant repeated that refrain by asking each of the tellers if defendant had "physically threatened" them.
At the close of the evidence, defendant requested that the court charge the jury on theft as a lesser-included offense of robbery. He argued that the statute requires that, "in the course of committing a theft" the defendant must "threaten another with or purposely put him in fear of immediate bodily injury" in order to be guilty of robbery. N.J.S.A. 2C:15-1(a)(2). Claiming that "the focus is not on the victim but on the actions and purpose of the defendant[,]" he asserted that "there was no immediate harm or threatened or implied [harm] if [the teller] did not comply. It was always directed towards the money." He thus requested that the court include in its jury charge the offense of theft as a lesser-included offense of robbery.
The trial court rejected that request. It noted the common understanding that "people that go into a bank to take money are prepared for combat. And they are prepared to hurt people, if they have to hurt people." It explained that "if you go into a bank and in order to get that bank teller to give you the money, you have to threaten them or put them in some kind of fear. So you start with that proposition[.]" Highlighting that the victim-teller testified that she "ran because [she] was scared and didn't know if [defendant] was going to kill [her,]" the court reasoned as follows:
And when was she scared that [she] didn't know what he was going to do to her? It was when this guy six foot four or five puts his hands on the glass and now is coming over the glass to invade her area, her secure area that is separated by a seven to seven and-a-half foot glass wall; that's why that glass wall is there[,] for protection..... [B]ut for the fact that she was scared to death and ran, if she [remained in] front of that drawer, there is no doubt in my mind that she would have gone flying..... So her space was invaded. And to say that under those facts and circumstances that she wasn't threatened or purposely put in fear of immediate bodily injury when a six foot five person scales a seven and a-half foot glass wall to go over into where the money drawer is, is absolutely ludicrous[.]
The bottom line is that you have to assess the totality of the circumstances, and we are mindful... that a bank employee should not have to take a risk being shot on the off[-]chance that the perpetrator is bluffing and the employee should have the fortitude to call the perpetrator's bluff.
So for all of those reasons I cannot in good conscience say that... there [is] a rational basis to charge [theft] in this case..... [F]or those reasons a lesser included charge of theft on [the robbery] counts will not be given."*fn4
The trial court charged the jury solely in respect of the two robbery counts listed in the indictment. After doing so, the trial court inquired of counsel: "Did I leave anything out?" Defense counsel responded that "[n]o, everything is good."
In respect of the bank teller robbery, the jury unanimously found defendant guilty as follows: that "on the 2nd day of February, , defendant Marcus Cassady in the course of committing a theft did threaten immediate bodily injury to [the bank teller] and/or did purposely put [the bank teller] in fear of immediate bodily injury[.]" At sentencing, the trial court returned to the proofs in the case, stating that
The evidence in this case was very strong. When the defendant robbed the bank, it was captured on video tape. His fingerprints were on a glass wall that he climbed over to get at the teller to get into the drawer and take money.
Defendant is at least 6-foot 5. The teller who testified was just over 5-feet. She testified how she was scared for her life and ran into another room and locked herself in that room. He absolutely put her in fear of immediate bodily injury.
The main defense in the case appeared to be one of identification, but based on the video tape, the eyewitnesses at the bank,... that was a defense that was, to say the least, weak. Coupled on top ...