weapon is not a deadly weapon under N.J.S.A. 2C:11-1.
State v. Brown, 325 N.J. Super. 447, 453 (App. Div. 1999),
certif. denied, 163 N.J. 76 (2000); State v. Riley, 306 N.J.
Super. 141, 149 (App. Div. 1997)(pocket knife). The
defendant must be provided notice regarding a charge of a
deadly weapon in an armed robbery charge, but the
particular kind of deadly weapon is not an element of
armed robbery. State v. Lopez, 276 N.J. Super. 296, 305
(App. Div. 1994), certif. denied, 139 N.J. 289 (1995).
Under the No Early Release Act, whether a defendant
used or threatened the victim with a deadly weapon, as
defined in that Act, is an element of the crime, which the
jury must find beyond a reasonable doubt. N.J.S.A. 2C:43-
7.2d; State v. Johnson, 166 N.J. 523, 766 (2001); State v.
Austin, 335 N.J. Super. 486, 490-93 (App. Div. 2000),
certif. pending. This ruling, based upon statutory
interpretation, was made prospective by the Court, i.e.,
after February 28, 2001.
E. Grading
Ordinarily, robbery is a second degree crime.
However, if in the course of committing the theft the
defendant attempts to kill anyone, purposely inflicts or
attempts to inflict serious bodily injury or is armed with,
uses or threatens the immediate use of a deadly weapon, it
is a first degree crime. N.J.S.A. 2C:15-1b. Defendant need
not personally possess the firearm to be convicted of armed
robbery. If defendant’s accomplice is armed with a firearm
during the robbery and defendant knew or had reason to
know that his accomplice was armed, then defendant is
guilty of armed robbery. State v. White, 98 N.J. 122, 130
(1984); State v. Gantt, 195 N.J. Super, 114, 118 (App. Div.
1984), aff’d, 101 N.J. 573 (1986).
In State v. Baker, 303 N.J. Super. 411 (App. Div.),
certif. denied, 151 N.J. 470 (1997), the Appellate Division
ruled that the court’s charge to the jury authorizing
conviction of the defendant for armed robbery, even if the
jury accepted his claim that he did not know about the gun
or the robbery until codefendants returned to his vehicle
after shooting the victim, correctly stated the law.
Defendant, who was the getaway driver, drove his
codefendants from the scene of the robbery with
knowledge that the victim was shot and the codefendant
possessed a gun. The Court held that defendant was
culpable for armed robbery.
The degree of robbery charged is an element of the
offense and must be set forth in the indictment. State v.
Catlow, 206 N.J. Super. 186, 194-95 (App. Div. 1985),
certif. denied, 103 N.J. 465-66 (1986); but see Bibby v.
Tard, 741 F.2d 26 (3d Cir. 1984)(stating that under the
New Jersey penal code, degree of robbery is not part of the
substantive offense but rather, is merely a grading
provision). Failure to include the first degree robbery
language in the indictment will result in at most a second
degree conviction. State v. Rodriguez, 234 N.J. Super. 298,
304 (App. Div.), certif. denied, 117 N.J. 656 (1989).In State v. Bohannan, 206 N.J. Super. 646 (App. Div.
1986), the court reversed a first degree robbery conviction
because the trial court failed to submit the lesser included
offense of second degree robbery where there was a rational
basis to find that defendant was guilty as an accomplice to
a simple robbery while the principals were guilty of armed
robbery. Id. at 650-51. When considering the guilt of an
accomplice to armed robbery, the judge must instruct the
jury to determine whether the defendant shared a purpose
to commit an armed robbery or whether the defendant
possessed the mental state for second degree robbery. State
v. Weeks, 107 N.J. 396 (1987); State v. Bielkiewicz, 267
N.J. Super. 520 (App. Div. 1993). A general accomplice
instruction that is not tailored to the facts and competing
presentations is unsatisfactory and will result in a reversal.
State v. Tucker, 280 N.J. Super. 149, 151-53 (App. Div.
1995).II. MERGER
Due to the consolidation of the theft offenses, robbery
“embraces” all thefts as lesser included offenses even
though the particular theft may not technically fit as a lesser
included offense. (See also, THEFT, this Digest.) State v.
Talley, 94 N.J. 385, 393-94 (1983); see also State v. Sein,
232 N.J. Super. 300 (App. Div. 1989), aff’d, 124 N.J. 209
(1991); State v. Freeman, 324 N.J. Super. 463 (App. Div.
1999); State v. Smalls, 310 N.J. Super. 285 (App. Div.
1998); State v. Jordan, 240 N.J. Super. 115 (App. Div.),
certif. denied, 122 N.J. 328 (1990); but see State v. Smith,
136 N.J. 245 (1994) (holding that where the State’s case
revealed a knifepoint robbery of a cabdriver, while the
defendant presented mere fare evasion, the trial court
should instruct the jury that if it accepted the defense
presentation, it should acquit, since the State’s harm to be
protected against, the security of the cabdriver’s money on
his person, was not the subject of the defense presentation).When the evidence demonstrates that a first degree
robbery was committed by means of an aggravated assault
upon the victim in the course of a theft, the indictment
should not fractionalize the incident by separately charging
aggravated assault and second degree robbery, unless the
event took place after flight i.e., a point of temporary safety.
Rather, defendant should be charged with first degree