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State v. Alexander

Supreme Court of New Jersey

April 30, 2018

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
ALLEN ALEXANDER, a/k/a KARON KEENAN, Defendant-Respondent.

          Argued January 3, 2018

         On certification to the Superior Court, Appellate Division.

          Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Robert D. Laurino, Essex County Prosecutor, attorney; Barbara A. Rosenkrans, of counsel and on the briefs).

          Michael Confusione argued the cause for respondent (Hegge & Confusione, attorneys; Michael Confusione, on the brief).

          Sarah C. Hunt, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Christopher S. Porrino, Attorney General, attorney; Sarah C. Hunt, of counsel and on the brief).

          Jaime B. Herrera, Assistant Deputy Public Defender, argued the cause for amicus curiae Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Jaime B. Herrera, of counsel and on the brief).

         TIMPONE, J., writing for the Court.

         In this appeal, we address whether the trial court erred when it failed to instruct a jury sua sponte on aggravated assault as a lesser-included offense of robbery.

         The victim, Ernesto Espinal, and defendant, Allen Alexander, provided differing accounts of the incident that occurred on July 4, 2012. According to Espinal, he was walking alone to catch a train when defendant and three other individuals confronted him. Defendant ordered that Espinal give him twenty dollars. Espinal ignored the demand and continued walking. Suddenly, defendant grabbed Espinal around his neck and commanded another individual to "cut" Espinal. Defendant's associate cut Espinal across his forehead with a knife while defendant continued to hold Espinal's neck. Defendant and the others then left without taking any money from Espinal.

         According to defendant, he and three of his friends were walking together when he bumped into Espinal. Espinal made a facial expression and said "something in Spanish." Believing Espinal had said "nothing nice, " defendant confronted Espinal. Espinal and defendant exchanged profanities. Defendant testified that one of his friends "tried to jump in it, " but defendant grabbed his friend and told him to "leave it alone." His friend pushed defendant away and punched Espinal. Defendant and his friends walked away. According to defendant, he never asked Espinal for money and he did not see anyone go through Espinal's pockets or take Espinal's wallet. He further testified that he did not see a weapon in his friend's hand when his friend punched Espinal.

         An Essex County Grand Jury returned an indictment against defendant charging him with second-degree conspiracy to commit robbery, first-degree robbery, fourth-degree unlawful possession of a weapon, and third-degree possession of a weapon for an unlawful purpose. The indictment did not charge defendant with aggravated assault. The State's case against defendant went to trial before a jury under a theory of accomplice liability. At the close of the evidence, the court conducted a charge conference. At no point did either party request an aggravated assault charge.

         The trial court instructed the jury that "[a] person is guilty of robbery if in the course of committing a theft he knowingly inflicts bodily injury or uses force upon another." It then explained each element the State had to prove beyond a reasonable doubt to sustain a robbery conviction. Later, the court instructed: "Robbery is a crime of the second degree except that it is a crime of the first degree if the actor is armed with or uses or threatens the immediate use of a deadly weapon. In this case the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon while in the course of committing the robbery." Defense counsel neither requested an aggravated assault charge nor objected to its omission from the trial judge's jury instructions. The jury convicted defendant of all charges.

         Defendant appealed his convictions. An Appellate Division panel reversed and remanded for a new trial. The panel observed that, even absent requests for charges or objections to charges, trial judges have an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense. The panel concluded that "there is a rational basis in the evidence for the jury to acquit defendant of robbery and conspiracy to commit robbery, as well as to convict defendant of aggravated assault." The Court granted the State's petition for certification. 229 N.J. 593 (2017).

         HELD: Under the circumstances of this case, aggravated assault is, at most, a related offense of the State's robbery charge. The trial court had no obligation to charge the jury sua sponte on aggravated assault as a lesser-included offense of the State's robbery charge.

         1. A trial court's decision to charge on a lesser-included offense is governed by N.J.S.A. 2C:1-8(e). Under that statute, the trial court cannot charge a jury on "an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). A party must request a charge or object to an omitted charge at trial for the rational basis test to apply. In the absence of a request or an objection, courts apply a higher standard, requiring the unrequested charge to be clearly indicated from the record. Trial courts have an independent duty to sua sponte charge on a lesser-included offense only where the facts in evidence clearly indicate the appropriateness of that charge. The evidence supporting a lesser-included charge must "jump[] off the page" to trigger a trial court's duty to sua sponte instruct a jury on that charge. State v. Denofa, 187 N.J. 24, 42 (2006). In State v. Funderburg, the Court "decline[d] to impose" a "burdensome requirement on trial courts" to carefully examine every piece of the record "to see if some combination of facts and inferences might rationally sustain a [lesser-included] charge" and noted that not "every potential lesser-included offense must be charged to the jury." 225 N.J. 66, 83 (2016). In contrast to lesser-included offenses, a trial court may instruct the jury on a related offense only when the defendant requests or consents to the related offense charge, and there is a rational basis in the evidence to sustain the related offense. (pp. 11-15)

         2 Just because a charge meets the rational basis test does not mean it meets the clearly indicated standard. The facts of this case call for review under the higher, clearly indicated standard. Defendant had several opportunities to request an aggravated assault charge but failed to do so. It was not until his appeal that defendant argued the trial court erred in not charging the jury sua sponte on aggravated assault. Reversal would be appropriate only if the basis for a lesser-included-offense charge were to "jump[] off the page[s]" of the record. Denofa, 187 N.J. at 42. The Court reaffirms that the clearly indicated standard is the appropriate lens through which to review any obligation to charge the jury sua sponte on a lesser-included offense, but does not apply that standard here. (pp. 15-17)

         3. On direct appeal, defendant only challenged the lack of an instruction concerning "serious bodily injury" aggravated assault, N.J.S.A. 2C:12-1(b)(1). Under N.J.S.A. 2C:15-1(a), a person is guilty of robbery if that person "inflict[ed] bodily injury or use[d] force" on the victim "in the course of committing a theft." The statute provides that robbery "is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). Here, the State charged robbery as a first-degree crime exclusively on the "deadly weapon" prong. As a result, based on its indictment, the State had to prove that defendant: (1) "inflict[ed] bodily injury or use[d] force" on the victim; and (2) possessed, used, or threatened to use "what appeared to be . . . a knife" during the commission of the robbery. By contrast, aggravated assault under N.J.S.A. 2C:12-1(b)(1) requires proof of an attempt "to cause serious bodily injury." "Serious bodily injury" aggravated assault under N.J.S.A. 2C:12-1(b)(1) requires a greater injury element than that in the State's robbery charge, cf. N.J.S.A. 2C:1-8(d)(3), and must be established by proof of more facts than those needed to establish "bodily injury, " cf. N.J.S.A. 2C:1-8(d)(1). Under the circumstances of this case, aggravated assault is, at most, a related offense of the State's robbery charge. The trial court had no duty to instruct the jury sua sponte on "serious bodily injury" aggravated assault. (pp. 17-19)

         4. Defense counsel did not argue that other forms of aggravated assault-beyond N.J.S.A. 2C:12-1(b)(1)-may constitute lesser-included offenses of robbery before the trial court or Appellate Division. Those arguments are therefore not properly before the Court, and the Court declines to address them. (pp. 19-20)

         5. The Court notes and rejects the State's argument that the opinion in State v. Sewell, 127 N.J. 133 (1992), affirmatively held that assault is never a lesser-included offense of robbery. There may be circumstances in which the evidence adduced at trial supports a charge on assault as a lesser-included offense of robbery. Here, the trial court had no obligation to charge the jury sua sponte on aggravated assault as a lesser-included offense of the State's robbery charge. (pp. 20-21)

         The judgment of the Appellate Division is REVERSED and defendant's convictions are REINSTATED.

          OPINION.

          TIMPONE, JUSTICE.

         In this appeal, we address whether the trial court erred when it failed to instruct a jury sua sponte on aggravated assault as a lesser-included offense of robbery.

         The State alleged that defendant Allen Alexander conspired with another to rob Ernesto Espinal at Gateway Center in Newark. According to the State, defendant held the victim around his neck while another man cut the victim's forehead. Defendant and his co-conspirator left without taking any items from the victim.

         Newark Police eventually arrested defendant in connection with the incident. A grand jury indictment charged defendant with second-degree conspiracy to commit robbery, first-degree robbery, fourth-degree unlawful possession of a weapon, and third-degree possession of a weapon for an unlawful purpose. A jury ultimately convicted defendant of all charges.

         On appeal, the Appellate Division reversed, finding that the trial court erred in failing to charge the jury sua sponte on "serious bodily injury" aggravated assault, N.J.S.A. 2C:12-1(b)(1). We find that the trial court had no obligation to issue a sua sponte jury instruction. We therefore reverse the Appellate Division's decision and reinstate defendant's convictions.

         I.

         A.

         We derive the following facts from testimony presented during defendant's trial. The victim, Ernesto Espinal, and defendant provided differing ...


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