On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-06-1004.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Sapp-Peterson and Espinosa.
A jury convicted defendant, Jose Avila, of first-degree robbery, N.J.S.A. 2C:15-1 (Count One); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Count Two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Three); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Four). The court imposed an aggregate eighteen-year custodial term with an eighty-five percent No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, period of parole ineligibility, along with appropriate fines and penalties.
On appeal defendant raises the following points for our consideration:
POINT I THE COURT FAILED TO CHARGE THE JURY ON ATTEMPTED THEFT, WHICH, ON THE FACTS OF THIS CASE, WAS THE ONLY POSSIBLE THEFT SUPPORTING THE ROBBERY CHARGE, DENYING DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMEND. V, VI, XIV; N.J. CONST.  ART. I, [¶] 1, 9, 10. (Not Raised Below).
A. THE COURT FAILED TO CHARGE ON AN ESSENTIAL ELEMENT OF ROBBERY.
B. THE PORTION OF THE ATTEMPT CHARGE GIVEN DURING THE AGGRAVATED ASSAULT INSTRUCTION DID NOT SERVE TO CURE ITS OMISSION WHEN CHARGING ROBBERY BECAUSE THE COURT NEGLECTED TO RELATE IT BACK TO ITS ROBBERY INSTRUCTION AND IT IS UNREASONABLE TO BELIEVE THAT THE JURY DID SO OF ITS OWN VOLITION.
POINT II THE IMPOSITION OF AN [EIGHTEEN-]YEAR TERM WITH AN [EIGHTY-FIVE PERCENT] PERIOD OF PAROLE INELIGIBILITY ON A FIRST OFFENDER IS MANIFESTLY EXCESSIVE AND REQUIRES REDUCTION.
We reject defendant's arguments advanced in support of the reversal of his conviction. We agree, however, that defendant's sentence must be reversed and remanded for re-sentencing.
The operative facts the State presented to the jury relevant to our discussion disclose that defendant accosted his victim during the late evening of April 9, 2006, when the victim was returning home carrying a large slice of birthday cake given to her by a friend. As the victim ascended the nine stairs leading to her front door, she heard "somebody running behind [her]." She proceeded to turn around and ask the person, whom she later identified as a Hispanic male, what he wanted. The individual responded by demanding money. When the victim told the man that she did not have any money, he displayed a knife. The victim testified that at that point, the encounter became violent, with the perpetrator attempting to stab her in the stomach. She avoided the attack by ducking, screaming and throwing the cake at him. The man continued in his attempt to stab her by swinging the knife towards her face. She parried the attack by blocking her face with her hands while continuing to scream, at which time she was cut "through [the] fingers" of her right hand. Her assailant eventually fled on foot.
Defendant contends the court's failure to instruct the jury on attempted theft, an essential element of robbery, left the jury without direction, an error defendant argues was clearly capable of causing an unjust result. We disagree.
At the outset, because no objection was raised to the court's jury instructions, we consider the alleged error under the plain error standard of review, Rule 2:10-2; namely, whether the claimed error was "clearly capable of producing an unjust result." In doing so, we initially iterate the well-established principle that when reviewing jury instructions, we consider the entire charge. State v. Smith, 322 N.J. Super. 385, 400 (App. Div.), certif. denied, 162 N.J. 489 (1999); State v. Thompson, 59 N.J. 396, 412 (1971). Because jury instructions play a critical role in guiding deliberations in criminal trials, improper instructions on material issues are presumed to constitute reversible error. State v. Jordan, 147 N.J. 409, 421-22 (1997). ...