On certification to the Superior Court, Appellate Division, whose opinion is reported at 400 N.J. Super. 608 (2008).
(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).
The Court interprets the phrase "armed with a deadly weapon," which is used in the grading provision of the robbery statute to elevate the crime from second to first degree, and decides whether the defendant's intent or lack of intent to use a weapon she possessed was relevant in determining whether she was guilty of first-degree robbery.
On September 12, 2005, defendant Maribel Rolon entered a restaurant in Elizabeth, New Jersey. The owner of the restaurant and an employee were in the kitchen. Rolon testified at her trial that she walked around the counter area, noticed an open cabinet that held a purse, and took money from the purse. The owner emerged from the kitchen, observed Rolon, and a struggle ensued. According to the owner, Rolon pulled off the owner's necklace and took out a knife that was either dropped or knocked out of Rolon's hands. Rolon denied pulling a knife, but admitted that she had a knife in the pocket of her jeans, which fell out during the struggle. Rolon claimed that the blade was not open before or at the time the knife hit the floor and that she never held the knife, brandished it, or threatened the owner with it. Rolon escaped from the struggle with the owner, but a third person detained her at the door. Meanwhile, the restaurant's employee heard the owner shout to call the police and that the woman had a knife. Although the employee saw Rolon holding the owner's necklace, she did not observe Rolon with a knife in her hand. After police arrived, the officer recovered a folding knife. The blade was open when the officer discovered it.
Rolon was indicted on various counts of robbery, aggravated assault, and possession of a weapon. The first-degree robbery charge required that the jury find Rolon knowingly used force or knowingly inflicted bodily injury while armed with and/or threatening the immediate use of a deadly weapon. At the close of the trial, the judge charged the jury concerning the meaning of the word "armed" with a deadly weapon. The judge distinguished "armed" from "mere possession," and stated that "armed with" meant "possessing an implement in a way that makes it available for use as a weapon." During its deliberations, the jury inquired further about the definition of "armed." The judge responded that the criminal code does not define "armed," but case law distinguishes it from mere possession and "seems to indicate that being armed means possessing an implement in a way that makes it available for use as a weapon." The judge continued by stating that "[t]he defendant's intent with respect to the object is irrelevant." The jury convicted Rolon of first-degree robbery and fourth-degree unlawful possession of a weapon.
The Appellate Division concluded that the trial judge's response to the jury's request for a definition of "armed" was fatally defective. 400 N.J. Super. 608 (2008). Relying on State v. Riley, 306 N.J. Super. 141 (App. Div. 1997), and State v. Brown, 325 N.J. Super. 447 (App. Div. 1999), the panel determined that in a robbery case, where the potential weapon is not a firearm, a defendant cannot be considered to have been armed with a deadly weapon unless he or she had immediate access to the potential weapon and an intent to use it in a way that is capable of producing death or serious bodily injury or that would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury. The panel concluded that the trial judge's instruction was incorrect because it told the jury that it could convict Rolon of first-degree robbery even if it believed she never actually used, threatened to use, or intended to use the knife. The panel reversed Rolon's first-degree robbery conviction and remanded for a new trial.
HELD: For first-degree robbery, if a weapon possessed by a defendant was not a firearm, the defendant cannot be considered to have been armed with a deadly weapon unless he or she had immediate access to the potential weapon and an intent to use it in a way that was capable of producing death or serious bodily injury. Because the judge's jury instructions in this case eliminated the issue of "intent," a proper evaluation of the evidence was precluded and the first-degree robbery conviction must be reversed.
1. As defined by N.J.S.A. 2C:15-1, robbery is a crime of the first degree if, in the course of committing a theft, the actor attempts to kill anyone, purposely inflicts or attempts to inflict serious bodily injury, or is armed with, uses, or threatens the immediate use of a deadly weapon. "Armed with" is not defined in the criminal code, but case law establishes that it means possession of, and immediate access to, a deadly weapon. "Deadly weapon" is defined in the criminal code as a weapon or instrument, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury. The Legislature established two distinct categories of deadly weapons. The first category consists solely of firearms. The second category includes other instruments that if used as intended are capable of producing death or serious bodily injury. If a weapon is not a firearm, but an object with legitimate uses, its use or intended use will determine whether it meets the deadly weapon standard. (Pp. 8-11).
2. The Appellate Division correctly applied Riley and Brown to this case. In Riley, the defendant knocked down the victim and stole his money while having in his pocket a folding knife that was discovered when he was apprehended. The panel ruled that the defendant could not be convicted of first-degree robbery because there was no evidence that he used or intended to use the knife against the victim. The Riley panel discussed the classes of weapons and explained that the possession and accessibility of a firearm vaults the statutory threshold with nothing more, but for objects with both legitimate and illegitimate uses, the use or intent to use the item is pivotal to the determination of deadliness. Similarly, in Brown, where the defendant had a kitchen knife in his pocket during a robbery and there was no evidence of intent to use it as a weapon, there was not sufficient evidence to establish that the knife was a "deadly weapon." Riley and Brown stand for the proposition that, where the potential weapon is not a firearm, a defendant cannot be considered to have been armed with a deadly weapon unless he had immediate access to the potential weapon and an intent to use it in a way that is capable of producing death or serious bodily injury. The Court rejects the arguments that "armed with a deadly weapon" requires proof only that a defendant had possession of the weapon in a manner that made it readily available for use, and that intent has no relevance to that analysis. Because an armed robbery conviction is dependent upon proof that a defendant was armed with a deadly weapon and because the determination of whether an equivocal item is in fact a deadly weapon depends on how the defendant used or intended to use it, the defendant's intent regarding the item cannot be irrelevant. (Pp. 11-15).
3. The jury was required to determine (1) whether Rolon's knife was a deadly weapon, and (2) whether she was armed with it. Because the knife was not a firearm, the jury had to assess whether she used it or intended to use it as a deadly weapon. When the judge stated that Rolon's intent was irrelevant, he misled the jury by permitting it to convict her of first-degree robbery even if it believed she never actually used or intended to use the knife and that, as she claimed, it simply fell out of her pocket during the struggle. If the jury believed Rolon used or intended to use the knife against the victim, the definition of deadly weapon was satisfied. If, on the other hand, the jury believed Rolon's version of the event, the definition of deadly weapon was not met. As in all cases, Rolon's intent was to be ascertained by the jury based on what she said and did and on all the circumstances surrounding her interaction with the victim. In eliminating the "intent" issue, the judge precluded a proper evaluation of the evidence. Consequently, Rolon's first degree robbery conviction is reversed and remanded for a new trial. (Pp. 15-17).
The judgment of the Appellate Division is AFFIRMED.
JUSTICE LONG, CONCURRING, joined by JUSTICE RIVERA-SOTO, compares the "armed with a deadly weapon" language in the robbery and burglary statutes and explains that in both statutes if the potential weapon is not a firearm a defendant cannot be considered to have been armed with a deadly weapon unless he had immediate access to the item and an intent to use it in a way that is capable of producing death or serious bodily injury. She asserts that prior case law suggesting a difference between the two statutes should be disapproved.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, WALLACE and HOENS join in the Court's opinion. JUSTICE LONG filed a separate concurring opinion, in which JUSTICE RIVERA-SOTO joins.
This appeal centers on the meaning of the phrase "armed with... a deadly weapon" as used in the grading provision of the robbery statute, which elevates the crime from second to first degree. N.J.S.A. 2C:15-1(b). Defendant stated that she took money from the victim's purse, and that a folding knife fell out of her pocket during a subsequent struggle with the victim. She maintained that she never used or intended to use the knife as a weapon. During deliberations, responding to a question from the jury, the trial judge said that defendant's "intent with respect to the object [(the folding knife)] is irrelevant." The Appellate Division reversed and remanded, concluding that in the circumstances of this case, that explanation, which eliminated any consideration of defendant's intent, was incorrect and irremediably confusing to the jury. We agree and affirm.
On September 12, 2005, at approximately 8:30 a.m., defendant Maribel Rolon entered Kalamio, a restaurant in Elizabeth, New Jersey. At the time, Anna Padilla, the owner of the restaurant, and Maria Ramirez, a restaurant employee, were working in the kitchen. Defendant testified that she walked around the counter area and noticed an open cabinet that held a purse, and that she looked into the purse for money. While she was doing so, Padilla emerged from the kitchen and observed her. A struggle ensued.
The nature of that struggle is disputed. According to Padilla, she saw defendant looking into her pocketbook and holding money in her hand. Defendant attempted to flee and a fracas occurred. Padilla testified that during the struggle defendant pulled her necklace off. Padilla then grabbed defendant by her wrists. Defendant dropped the necklace and money, took out a knife, and threw a napkin holder, which hit Padilla on the head. At some point, defendant either dropped the knife, or Padilla knocked the knife out of defendant's hands. As defendant broke free from Padilla's grasp, a customer entered the restaurant and grabbed defendant by the hands.
Defendant's version of the struggle differed distinctly from Padilla's. Acknowledging that she took money from Padilla's purse, defendant testified that Padilla grabbed her. Defendant said she told Padilla to let her go, but did not kick or punch her. She also denied taking Padilla's necklace. Further, defendant asserted that she never pulled a knife on Padilla, but admitted that she had a knife in the front pocket of her jeans, which fell out during the struggle. She stated that the blade was not open before or at the time the knife hit the floor. Defendant testified that she never held the knife in her hand, never brandished the knife, and never threatened Padilla with the knife. She escaped from Padilla's grasp, but a third person detained her at the door.
Ramirez testified that she had been working in the kitchen, observed defendant and Padilla fighting, and heard Padilla yell to "call the police, that the woman had a knife." Although Ramirez saw defendant holding Padilla's necklace, she did not observe defendant with a knife in her hand.
In response to Ramirez's call, Detective Clarence Cunningham arrived at the scene and apprehended defendant as she was running out of the restaurant. Cunningham testified that the "restaurant was in disarray,... there was money on the floor, the owner's pocketbook was thrown on the floor." Cunningham recovered a folding knife; the blade was open when he discovered it.
Defendant was indicted for first-degree robbery by knowingly using force or knowingly inflicting bodily injury, while armed with and/or threatening the immediate use of a deadly weapon, N.J.S.A. 2C:15-1(a)(1), (b) (count one); first-degree robbery by knowingly threatening immediate bodily injury or purposely putting the victim in fear of immediate bodily injury, while armed with and/or threatening the immediate use of a deadly weapon, N.J.S.A. 2C:15-1(a)(2), (b) (count two); second-degree aggravated assault by attempting to cause serious bodily injury, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree aggravated assault by attempting to cause bodily injury with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count six). Defendant was indicted separately for fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a). A trial ensued at which the witnesses testified to the outlined facts.
At the close of the trial, the trial judge charged the jury as follows:
Now a section of our statute provides that robbery is a crime of the second degree, except that it becomes a crime and is a crime of the first degree if the robber is armed with or ...