robbery count requires a separate jury charge as to each
theft victim and failure to do so will result in reversal of the
uncharged counts. Farrad, supra, 164 N.J. at 262.
Failure to charge attempted theft when warranted will
result in reversal, Carlos, supra, 187 N.J. Super. at 415-18,
even if raised for the first time on appeal. Gonzalez, supra
(reversing felony murder count due to the failure of the
underlying robbery); State v. Smith, 322 N.J. Super. 385
(App. Div.), certif. denied, 162 N.J. 489 (1999)(affirming
felony murder and robbery convictions since attempt
instruction was provided elsewhere in the final jury
charge).
- Assault Element
The plain language of the statute and legislative history
indicate that minimal force upon another, such as a purse-
snatching or blind-side mugging, suffices for a robbery
conviction. N.J.S.A. 2C:15-1a; Mirault, supra, 92 N.J. at
- However, force against the theft victim must exceed
a sudden taking without injury or without the opportunity
of the victim to physically resist, i.e., a wresting from the
victim. State v. Sein, 124 N.J. 209, 212-18 (1991).
A purposeful threat of immediate bodily injury or
purposeful or knowing injury to someone other than the
possessor of the property will justify a conviction for
robbery. N.J.S.A. 2C:15-1a; Farrad, supra. Similarly,
flight from the completed or attempted theft which
purposely or knowingly causes injury to others will
constitute robbery. Farrad, supra; State v. Sewell, 127 N.J.
133, 138 (1992); State v. McClary, 252 N.J. Super. 222
(App. Div. 1991), certif. denied, 130 N.J. 6 (1992).
Moreover, a purposeful terroristic threat directed at a
witness while fleeing from a theft constitutes a robbery.
Farrad, supra; State v. Smalls, 310 N.J. Super. 285, 292
(App. Div. 1998); State v. Planes, 274 N.J. Super. 190 (Law
Div. 1994). The threat is determined under the totality of
circumstances, and does not require any special words or
conduct by the accused. Farrad, supra; Smalls, supra.
C. Flight from Attempted or Completed Robbery
Flight turns on several considerations of causation
including: rate of asportation, time, distance, whether
there is pursuit, whether the defendant reached a point of
temporary safety and whether the defendant still possesses
the fruits of the crime. Mirault, supra, N.J. at 500-501;
State v. Pantusco, 330 N.J. Super. 424, 441-44 (App. Div.
2000). Where a robbery may be construed as completed,
i.e., it can reasonably be determined that the perpetrator
reached a point of temporary safety, the judge must instruct
the jury on separate offenses that occur after flight, e.g.,
assault, resisting arrest, etc., if applicable. State v. Jordan,
240 N.J. Super. 115 (App. Div.), certif. denied, 122 N.J.
328 (1990); State v. Crouch, 225 N.J. Super. 100, 109 (App.
Div. 1988); Carlos, supra, 187 N.J. Super. at 418.D. Deadly WeaponPrior to January 4, 1982, “deadly weapon” was defined
as a “firearm or other weapon, device, instrument, material
or substance, whether animate or inanimate, which in the
manner it is used or is intended to be used, is known to be
capable of causing death or serious bodily injury.” As a
result, in State v. Butler, 89 N.J. 220 (1982), the Supreme
Court ruled that a first degree robbery conviction could not
stand where the defendant did not possess a real firearm
when he committed the robbery but either possessed a toy
or fake gun simulating the use of a firearm. Id. at 231. See
also State v. Ortiz, 187 N.J. Super. 44,47 (App. Div. 1982)
(affirming a first degree robbery conviction where a
defendant carrying a “fake gun” used it to strike the victim
in an attempt to inflict serious bodily injury).The definition of deadly weapon was amended,
effective January 4, 1982, to include the phrase “or which
in the manner it is fashioned would lead the victim
reasonably to believe it to be capable of producing death or
serious bodily injury,” thereby alleviating the Butler
problem. The statutory definition of “deadly weapon,”
N.J.S.A. 2C:11-1c, which will elevate a robbery to a first
degree crime, is satisfied if there is some device used by the
defendant which is fashioned to create in the victim the
reasonable sensory impression that the object is capable of
causing serious bodily harm or death. State v. Hutson, 107
N.J. 222, 229 (1987). The statute does not require the
presence of a tangible object fashioned to look like a
weapon or held in a manner to suggest that it concealed a
weapon.In State v. LaFrance, 117 N.J. 583 (1990), the Supreme
Court further held that defendant’s use of his hand to
simulate a gun, along with the victims’ reasonable sensory
impression that what purported to be a gun was being used,
supported a first degree robbery conviction. Id. at 594. In
State v. Huff, 292 N.J. Super. 185 (App. Div. 1996), the
Appellate Division held that defendant’s patting his pocket
over loose-fitting clothing and placing his hand into a
pocket indicating possession of a firearm was sufficient to
sustain a first degree robbery conviction.A defendant armed with a kitchen knife which was not
used or intended to be used, and which was not observed by
the victim, is not guilty of a first degree robbery because the