appeal that was pending before the Appellate Division at
the time of the McLaughlin decision), cert. denied, 513 U.S.
1090, 115 S.Ct. 751 (1995).
State v. Purnell, 161 N.J. 44 (1999) (rule of State v.
Anderson, 127 N.J. 191 (1992) which requires a jury, rather
than a judge to decide materiality of a perjury offense did
not apply retroactively).
State v. Brimage, 153 N.J. 1 (1998) (the holding in this
case involving plea agreements pursuant to the
Comprehensive Drug Reform Act had limited retroactive
effect and only applied to this defendant and to cases
pending on appeal at the date the opinion was issued).
State v. Haliski, 140 N.J. 1 (1995) (rule that second
Graves Act offender may be sentenced to mandatory term
of imprisonment while first Graves Act conviction either is
pending on appeal or time to appeal that conviction has not
yet expired was given limited retroactive effect and applied
to cases where sentencing on a second Graves Act
conviction has not yet occurred and cases where the
offender was sentenced on a second Graves Act conviction,
but as of date of this decision, the parties had not exhausted
all avenues of direct review on that conviction).
State v. Tarver, 272 N.J. Super. 414 (App. Div. 1994)
(holding that State v. Vasquez 129 N.J. 189 (1992) and
State v. Peters, 129 N.J. 210 (1992), which held that the
prosecutor must state reasons on the record for waiving or
not waiving a parole disqualifier did not apply retroactively
to this case).
See generally, Trusdale v. Aiken, 480 U.S. 527, 107
S.Ct. 1394 (1987) (per curiam opinion reversing the
decision which refused to apply Skipper v. South Carolina,
476 U.S. 1, 106 S.Ct. 1669 (1986), retroactively to cases
that were final at the time of the decision). The implication
thus being that Skipper is retroactive.
ROBBERYROBBERYROBBERYROBBERYROBBERY
Robbery is defined in N.J.S.A. 2C:15-1.
I. ElementsTitle 2C broadens the pre-Code definition of robbery
in several respects, but retains the common law touchstone
of robbery as a larceny coupled with assaultive behavior.
State v. Farrad, 164 N.J. 247, 262 (2000).A. Attempted RobberyIn Farrad, the Supreme Court held that attempted
robbery is a crime under the Code. Id. at 258-63. See also
State v. Gonzalez, 318 N.J. Super. 527 (App. Div.), certif.
denied, 161 N.J. 148 (1999) (tacitly recognizing the crime
of attempted robbery). The Court also held that a first
degree robbery conviction could be “molded” on appeal
into a second degree attempted robbery conviction if the
elements for the lesser crime were present in the record,
Farrad, supra, 164 N.J. at 264-69, or the matter could be
remanded to the trial court to determine if the elements of
attempted robbery are present. State in re L.W., 333 N.J.
Super. 492, 499 (App. Div. 2000).B. Robbery- Larceny Element
The asportation, or taking away, of property is no
longer an element of robbery. State v. Mirault, 92 N.J. 492,
496 (1983). The property sought by the thief need not be
owned by the victim. State v. Butler, 27 N.J. 560, 589
(1958). It need only belong to someone other than the
thief. State v. Ford, 92 N.J. Super. 356, 363 (App. Div.
1966); State v. Bowden, 62 N.J. Super. 339, 345 (App.
Div.), certif. denied sub nom., State v. Duffy, 33 N.J. 385
(1960). The property need not be physically on the
person, but only in the person’s custody or control. State v.
Reddick, 76 N.J. Super. 347, 350 (App. Div. 1962); State v.
Cottone, 52 N.J. Super. 316 (App. Div. 1958), certif. denied,
28 N.J. 527 (1959).A defendant who uses force against two persons in the
course of committing a separate theft against each person
commits two robberies. Farrad, supra; Mirault, supra, 92
N.J. at 497 n.4; State v. Lawson, 217 N.J. Super. 47, 51
(App. Div. 1987). Constructive possession of property by
two victims may constitute two robberies. Farrad, supra.
See also State v. Carlos, 187 N.J. Super. 406, 417 (App. Div.
1982), certif. denied, 93 N.J. 297 (1983). However, each