On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-04-632.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and St. John.
Defendant Eric L. Warren appeals from his conviction for second-degree robbery, contrary to N.J.S.A. 2C:15-1, as well as the resulting sentence of incarceration for fifteen years, with an eighty-five-percent period of parole ineligibility. We reverse and remand for a new trial.
We discern the following facts and procedural history from the record on appeal.
On January 12, 2010, Warren entered a drug store in Kearny. While in the store, he put containers of deodorant and shower gel into his pants. He was approached by Jose Alvarez, the store manager, who asked Warren to accompany him to the back of the store. According to Alvarez, Warren went with him with "no problem at all." When they arrived in the back room, Alvarez told Warren that he wanted the toiletries. After Warren denied having taken them, Alvarez shook him, causing the items to fall from the bottom of Warren's pants onto the floor.
When Alvarez went to the door to summon another employee, Warren tried to leave the back room through another door. Alvarez grabbed Warren and tried to make him sit on a chair. Warren shoved Alvarez back several times, and attempted to punch him, but was unable to do so. During the argument, a customer entered the room. The customer grabbed Warren, who resisted his efforts to detain him. Warren tried, but was not able to hit the customer. Warren eventually slipped away and went back into the store.
According to Alvarez, he followed Warren into the store, where he and another employee grabbed Warren. At that point, again according to Alvarez, Warren "gave up." According to Kearny Police Officer Christopher Lavchak, he arrived at the scene as Alvarez and the other employee were "grappling" with Warren. Lavchak testified that he grabbed Warren, who tried to pull away. Lavchak eventually subdued Warren and handcuffed him.
Warren was indicted in March 2010. In addition to robbery, he was charged with aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(7), and resisting arrest, contrary to N.J.S.A. 2C:29-2(a). Warren was tried before a jury over three days between November 30 and December 2, 2010. The State presented testimony from Alvarez and Lavchak. Warren chose to exercise his right to remain silent and did not testify.
After the State rested, defense counsel moved to dismiss count two, which alleged assault against the customer, who had not testified. The judge granted that motion. Defense counsel also moved to dismiss count one, the robbery, arguing that any theft was complete by the time Warren had voluntary accompanied Alvarez to the back room and the toiletries had been taken from him. The judge denied that motion, indicating that there was testimony from which the jury could determine that there had been force used in connection with the theft.
With respect to the issue of robbery, the judge first charged the jury on shoplifting, N.J.S.A. 2C:20-11, which he later characterized as the underlying theft charge. The judge then charged the jury on the elements of robbery and resisting arrest.
Less than an hour into deliberations, the jury sent a note requesting a definition of the word "force" as used in the jury charge. In response, after consulting counsel, the judge reread the definition in his original charge and then gave examples. The jury asked to hear the definition again, and also asked for additional examples. After the judge complied, he asked whether the jury understood. One juror responded:
You said in the course of the theft right when this is happening, and we're having --you just mentioned it again, the force is in the moment that I took the pocket book [ (one of the examples given by the judge)] or is -- I don't know.
The judge then re-read a portion of the charge as follows:
In the course of committing a theft, an act is considered to be in the course of committing a theft if it occurs in an attempt to commit the theft, during the commission of theft itself, or in the immediate flight after the attempt or commission of the theft.
Three separate times are considered in the course of the theft, either in the attempt to commit the theft, during the time the theft is actually occurring or, in the flight immediately after the theft.
When the judge again asked if the jury understood, a juror*fn1 said that he or she did not. The judge then added:
Flight immediately after, what that means exactly, it's a period of time or there is no definite period of time. There is nothing in the law that says 30 seconds after the theft, if it is more than 30 seconds it is not immediate.
At that point, defense counsel objected. At side bar, the judge cut defense counsel off as she was explaining her objection, stating that he had "a duty to instruct [the jury] and provide them with examples if they require them."
After the sidebar, the judge continued:
[T]here is no fixed time limit for what is considered immediate flight. The language, plain language, I trust you understand what that means, so there's no time limit for that, five seconds, 30 seconds, 20 minutes, flight subsequent to the offense that this section is designed to ...