NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 6, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-07-1220.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Grall and Koblitz.
Defendant Nelson Garcia appeals from the May 16, 2011 judgment of conviction of robbery, N.J.S.A. 2C:15-1, and hindering his own apprehension by giving false information to the police, N.J.S.A. 2C:29-3(b)(4). Because of errors in the charge to the jury, we reverse and remand for a new trial.
Hudson County Indictment No. 10-07-1220 charged defendant with second-degree armed robbery (count one), fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count two) and third-degree hindering apprehension (count three). The second count was dismissed prior to trial at the request of the State.
Defendant did not testify or present any witnesses at trial. The State's witnesses presented the following facts. Henry Melendez was working as a shift supervisor at a West New York CVS drugstore at 3:30 in the afternoon when he saw defendant placing chewing gum inside his jacket. Melendez went up to defendant and asked him to hand over the gum and said that if he did, Melendez would let him go. Instead, defendant "tried to push through [Melendez] while he was holding on to the merchandise" with one hand. Melendez grabbed defendant and defendant pushed Melendez into a glass wall that cracked and then defendant fell. During this encounter, defendant spilled the gum he was carrying all over the floor. Defendant then got up and grabbed Melendez's arms, trying to push through him, causing Melendez pain. Eventually, Melendez captured defendant and brought him to the back of the store where defendant waited for the police to arrive. The retail value of the fifty-two packages of gum taken by defendant was $157.68. Melendez testified that, although he had no bruises, his back was sore and he "had burns on [his] arm from where [defendant] was twisting to try to get my hands off of him when [Melendez] was holding on to [defendant]." Melendez, the only eye-witness who testified, acknowledged that the store videotape, which captured the physical confrontation between the two men, had not been preserved. When the police arrived, defendant gave them a false name.
Defendant was sentenced pursuant to N.J.S.A. 2C:44-3 to a discretionary extended term of fifteen years with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the robbery charge and a concurrent five-year term on the charge of hindering apprehension.
Defendant raises the following issues on appeal:
POINT I: THE INSTRUCTIONS FAILED TO DEFINE "ATTEMPT, " AN ESSENTIAL ELEMENT OF THE CHARGED OFFENSE OF ROBBERY. ...