State v. Osborne S. Maloney (068877) , 216 N.J. 91 ( 2013 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Osborne S. Maloney (A-64-11) (068877)
Argued November 28, 2012 -- Decided October 16, 2013
ARIEL A. RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a majority of the Court.
In this appeal, the issue is whether the trial court was required to instruct the jury sua sponte on accomplice
liability and whether it was also required to charge the jury on the lesser-included offenses of attempted theft by
receiving stolen property and conspiracy to receive stolen property.
This case stems from the armed robbery of the home of supermarket owner Syoma Shnayder (Sam) and his
wife Rita Shnayder. Igor Chichelnitsky planned the robbery because Sam had turned down his offers to supply
products to Sam’s supermarket stores. Chichelnitsky recruited defendant, Juan Rodriguez, and Nathan Jakubov to
commit the robbery. According to the State, on August 16 or 17, 2005, defendant, Rodriguez, and Jakubov drove in
Jakubov’s Lexus to “scope out” the Shnayder’s home in Monroe Township, at which time defendant took
photographs of the house. On August 19, 2005, at approximately 10 p.m., Jakubov drove defendant and Rodriguez
to the home again. Jakubov stayed in the Lexus while defendant and Rodriguez walked towards the home wearing
black masks. Defendant carried a .38 caliber handgun and a knife, and Rodriguez carried a 9-millimeter handgun.
Rita was not home but arrived during the robbery. At some point during the ordeal, Rita managed to run out of the
house and called 911. Sam was able to get himself loose from zip ties, at which time defendant shot him in the
abdomen and ran out of the house. Rodriguez, who was upstairs, heard the gunshot and came downstairs. He saw
defendant running from the home and he ran too. Outside, Rodriguez saw Jakubov driving away with defendant.
Rodriguez fled on foot with the stolen property: $7000 in cash and two expensive watches.
Monroe Township police officers Richard Livingston and Allan Excel responded to the scene and received
a description of the robbers. Shortly thereafter, they discovered Rodriguez several blocks away from the Shnayder
home. When the officers approached him Rodriguez was sweaty, avoiding eye contact, and stuttering. Rodriguez
identified himself and stated that he was coming from his friend’s house in Monroe. The officers noticed bulges in
Rodriguez’s front pants pocket. Fearing he had a weapon, the officers conducted a pat-down search, which revealed
two cellphones, two watches, $7000 in cash, and a black mask in Rodriguez’s back pocket. Officer Excel testified
that Rodriguez stated that “he knew what went on down the street” and gave a description of the Lexus. The police
arrested Rodriguez and gave him Miranda warnings. Rodriguez confessed that he, Jakubov, and defendant robbed
the Shnayder home and that defendant shot Sam during the incident. At police headquarters, Rodriguez agreed to
make a telephone call to defendant and Jakubov while the police listened. Rodriguez asked defendant and Jakubov
to come back and get him, informing them that he had taken $7000 from the home. Jakubov and defendant told
Rodriguez to “lay low” and promised that they would come and get him. Rodriguez called a second time and spoke
to defendant. After confirming that Rodriguez had $7000 and two expensive watches, defendant agreed to pick him
up at a nearby hotel. Defendant returned to Monroe in a taxi and the police took him into custody at the hotel.
Defendant was charged with attempted murder, conspiracy to commit robbery, burglary, weapons offenses,
and related charges stemming from the robbery. Defendant testified and denied participating either in the planning
or commission of the robbery. He admitted to traveling to Monroe in early August 2005 with Jakubov and
Rodriguez but denied knowing the purpose of the trip. Defendant further testified that he returned to the area of the
robbery in the early morning after the armed robbery and shooting, believing that he would be reimbursed for his
taxicab fare by Rodriguez, and that he would be paid some money after two stolen watches “were swapped.”
Defense counsel requested that the jury be instructed on attempted theft by receiving stolen property as a
lesser-included offense of robbery. The prosecutor objected, arguing such charge lacked a rational basis in the
record. The judge denied defendant’s request. The judge also denied defense counsel’s request that the jury be
instructed on conspiracy to commit theft as a lesser-included offense of robbery. Defendant did not request an
accomplice liability instruction or object to the final jury charge. The jury found defendant guilty of second-degree
conspiracy to commit armed robbery, second-degree conspiracy to commit burglary, two counts of first-degree
armed robbery, second-degree burglary, second-degree possession of a weapon (a handgun) for an unlawful
purpose, and third-degree criminal restraint.
Defendant appealed. The Appellate Division rejected defendant’s argument that his convictions should be
reversed because the judge did not instruct the jury sua sponte on accomplice liability or on two lesser-included
offenses. The Appellate Division affirmed defendant’s convictions but concluded that the convictions for
conspiracy to commit armed robbery and burglary as well as possession of a weapon for an unlawful purpose
merged with the armed robbery conviction, and remanded for the entry of a corrected judgment.
The Supreme Court granted defendant’s petition for certification. 209 N.J. 97 (2012).
HELD: The trial court did not err by failing to sua sponte instruct the jury on accomplice liability and by rejecting
defendant’s request to charge the jury on the asserted lesser-included offenses of attempted theft by receiving stolen
property and conspiracy to receive stolen property.
1. Whether a defendant is being prosecuted as a principal or an accomplice, “the State must prove that he possessed
the mental state necessary to commit the offense.” State v. Whitaker, 200 N.J. 444, 458 (2009) (citing N.J.S.A.
2C:2-2(a)). If the State’s theory is “that a defendant acted as an accomplice, the trial court is obligated to provide
the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by
defense counsel.” State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993). On the other hand, when the
State’s theory of the case only accuses the defendant of being a principal, and a defendant argues that he was not
involved in the crime at all, then the judge is not obligated to instruct on accomplice liability. A court cannot
charge the jury on a lesser-included offense “unless there is a rational basis for a verdict convicting the defendant of
the included offense.” N.J.S.A. 2C:1-8e. If neither party requests a charge on a lesser-included offense, the court
must sua sponte provide an instruction “‘when the facts adduced at trial clearly indicate that a jury could convict on
the lesser while acquitting on the greater offense.’” State v. Thomas, 187 N.J. 119, 132 (2006) (quoting State v.
Jenkins, 178 N.J. 347, 361 (2004)). (pp. 16-22)
2. The trial judge did not commit plain error by failing to sua sponte instruct the jury on accomplice liability. Even
if defendant had requested such a charge, the accomplice liability instruction would not have been warranted
because it was not grounded in a rational basis in the trial evidence. None of the evidence presented by the State
could support a jury finding that defendant was liable as an accomplice rather than as a principal and defendant
suffered no prejudice by the judge’s failure to sua sponte charge the jury on accomplice liability. Further, despite
defendant’s arguments, the evidence could not support a finding that defendant had a lesser intent than that required
to commit robbery. Defendant’s request that the judge instruct the jury on two lesser-included offenses of robbery --
attempted theft by receiving stolen property and conspiracy to receive stolen property -- was properly denied.
Robbery is a crime against a person, which focuses on the use of force or threatened use of force against the victim.
Attempted theft by receipt of stolen property and conspiracy to receive stolen property, on the other hand, are
property crimes. Thus, the Appellate Division correctly decided that the trial court did not err by failing to sua
sponte instruct the jury on accomplice liability and by rejecting defendant’s request to charge the jury on the
asserted lesser-included offenses of attempted theft by receiving stolen property and conspiracy to receive stolen
property. (pp. 22-26)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE ALBIN filed a separate, DISSENTING opinion, stating that the trial judge was required to
charge the jury on attempted theft by receiving stolen property as a related offense and that failing to give the jury
the opportunity of convicting defendant of the offense he said he committed had the capacity of causing an unjust
result.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, HOENS, and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion. JUSTICE ALBIN filed a separate,
dissenting opinion.
2
SUPREME COURT OF NEW JERSEY
A-64 September Term 2011
068877
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OSBORNE S. MALONEY,
Defendant-Appellant.
Argued November 28, 2012 – Decided October 16, 2013
On certification to the Superior Court,
Appellate Division.
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).
Joie D. Piderit, Assistant Prosecutor,
argued the cause for respondent (Bruce J.
Kaplan, Middlesex County Prosecutor,
attorney).
JUDGE RODRÍGUEZ (temporarily assigned) delivered the
opinion of the Court.
In this case, the State alleged that defendant Osborne S.
Maloney was part of a four-person conspiracy to commit a
targeted armed robbery of a businessman at his home. The
State’s theory of the case was that one man was the ringleader,
another the driver of the getaway car, and defendant and the
fourth man were the ones that executed the planned armed
1
robbery, which went awry and resulted in the businessman being
shot in the abdomen by defendant.
The four men were arrested shortly thereafter. One of the
accused reached an agreement with the State and testified
against defendant. At his trial, defendant testified that he
was not part of the conspiracy. He admitted that the day after
the armed robbery and shooting, he took a taxi from New York
City to a hotel in Monroe Township to pick up a co-defendant in
the hopes of obtaining the proceeds from the sale of watches
stolen from the victim’s home. The jury’s verdict was mostly
consistent with the State’s theory.
Defendant contends that his convictions should be reversed
based on the judge’s failure to instruct the jury sua sponte on
accomplice liability, pursuant to N.J.S.A. 2C:2-6 and State v.
Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993). Defendant
also contends that reversal is required for failure to charge
two lesser-included offenses. We affirm the judgment of the
Appellate Division, which upheld the convictions.
I.
Defendant was charged with attempted murder, conspiracy to
commit robbery, burglary, weapons offenses, and related charges
stemming from the robbery of the home of supermarket owner Syoma
Shnayder (Sam) and his wife Rita Shnayder. Igor Chichelnitsky
planned the robbery because Sam had turned down his offers to
2
supply products to Sam’s supermarket stores. Chichelnitsky
recruited defendant, Juan Rodriguez, and Nathan Jakubov to
commit the robbery. Pursuant to an agreement with the State,
Rodriguez pleaded guilty to armed robbery and testified at the
trial of defendant.
The State’s evidence can be summarized as follows. On
August 16 or 17, 2005, defendant, Rodriguez, and Jakubov drove
in Jakubov’s 2003 Lexus to “scope out” the Shnayder’s home in
Monroe Township. Defendant took photographs of the house. On
August 19, 2005, at approximately 10:00 p.m., Jakubov drove
defendant and Rodriguez to the home again. Jakubov stayed in
the Lexus while defendant and Rodriguez walked towards the home
wearing black masks covering their faces. Defendant carried a
.38 caliber handgun and a knife, and Rodriguez carried a 9-
millimeter handgun.
Defendant and Rodriguez went to the backyard of the house.
Sam was “snoozing” in the hot tub. Sam testified that someone
in a black ski mask came up behind him, grabbed his hair, put a
knife to his throat, and threatened to kill him if he screamed.
A second man in a ski mask entered the backyard. Sam’s hands
were tied behind his back with plastic zip ties. In his
testimony, Rodriguez identified defendant as the man who put a
knife to Sam’s throat. Rodriguez also testified that he
demanded to know where money was hidden. Sam directed him to
3
the kitchen, where Rodriguez took $7000 from a table. Rodriguez
brought Sam upstairs to search for additional money.
Rita returned home, noticed defendant, and began screaming
while asking, “Where’s my husband?” Defendant covered her mouth
and held the knife to her head. Sam and Rodriguez returned to
the first floor. Rita continued screaming. Thereafter, Sam
told the robbers he had two expensive watches in the kitchen,
and one of the men retrieved the watches.
Rita managed to free herself, ran to a neighbor’s home, and
called 911. Sam released his arms from the ties. Defendant
then shot Sam in the left side of his abdomen and ran out of the
house. Rodriguez testified that he was upstairs looking for
more items to steal when he heard the gunshot. He came
downstairs and saw defendant running from the home. Rodriguez
began to follow but Sam grabbed him by the leg. Rodriguez
kicked himself free and ran out of the home. Outside, he saw
Jakubov driving away with defendant. Rodriguez fled on foot.
While doing so, he discarded the shirt he was wearing, his
plastic gloves, and a handgun.
Monroe Township police officers Richard Livingston and
Allan Excel responded to the scene and received a description of
the robbers. Shortly thereafter, they discovered Rodriguez
several blocks away from the Shnayder home. When the officers
approached him Rodriguez was sweaty, avoiding eye contact, and
4
stuttering. Rodriguez identified himself and stated that he was
coming from his friend’s house in Monroe. The officers noticed
bulges in Rodriguez’s front pants pocket. Fearing he had a
weapon, the officers conducted a pat-down search, which revealed
two cellphones, two watches, $7000 in cash, and a black mask in
Rodriguez’s back pocket.
Officer Excel testified that Rodriguez stated that “he knew
what went on down the street” and gave a description of the
Lexus. The police arrested Rodriguez and gave him Miranda1
warnings. Rodriguez confessed that he, Jakubov, and defendant
robbed the Shnayder home and that defendant shot Sam during the
incident.
At police headquarters, Rodriguez agreed to make a
telephone call to defendant and Jakubov while the police
listened. Rodriguez asked defendant and Jakubov to come back
and get him, informing them that he had taken $7000 from the
home. Jakubov and defendant told Rodriguez to “lay low” and
promised that they would come and get him. Several minutes
later, Rodriguez was informed by Jakubov’s girlfriend that
Jakubov had been arrested for driving without a license.
Rodriguez spoke to defendant and asked him to pick him up.
Defendant asked how much money Rodriguez had removed from the
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
5
premises. Rodriguez confirmed that he had $7000 plus two
expensive watches. Defendant agreed to pick up Rodriguez at a
nearby hotel. Defendant returned to Monroe in a taxi and the
police took him into custody at the hotel.
Defendant testified and denied participating either in the
planning or commission of the robbery. Defendant admitted to
traveling to Monroe in early August 2005 with Jakubov and
Rodriguez but denied knowing the purpose of the trip. According
to defendant, Rodriguez took photographs of the Shnayder home.
Defendant also denied that Jakubov and Rodriguez asked him to
return to the area at a later date.
Defendant testified that he returned to the area where the
robbery took place in the early morning after the armed robbery
and shooting. He testified as follows on direct:
[Defense Counsel]: Did you come down to
Monroe Township on August 20th, 3 o’clock in
the morning?
[Defendant]: Yes, ma’am.
Q. And how did you come to wind up coming
down to Monroe Township?
A. All right. Nathan [Jakubov] was
with a girl that I hooked him up with.
Q. What’s that girl’s name?
A. Asia.
Q. Do you know her last name?
6
A. I don’t recall her last name. I
don’t, ma’am, no. Nathan was with Asia, the
girl I hooked him up with. So, Asia called
me and said Nathan --
[Assistant Prosecutor]: Objection, hearsay.
[Judge]: Sustained.
Q. Did you receive a telephone call that
evening?
A. Yes, ma’am.
Q. And as a result of that telephone call
-- did the telephone call come from Asia?
A. Yes, ma’am.
Q. As a result of that telephone call, did
you do something?
A. Yes, ma’am.
Q. And what was that?
A. I went to, I went -- I reported to
Asia as a result of that telephone call,
ma’am.
Q. And then what happened?
A. Then when I reported to her, she
was telling me what happened with Nathan.
Q. Okay. And this was what time?
A. This is about midnight. Midnight,
a little past midnight, yeah.
Q. And what did you do after that? What
happened after that?
A. I got the property from Asia,
Nathan’s property, like his chain, his
wallet, his phone stuff, like that.
7
Q. Where was Nathan if you know?
A. She had told me that he had got
arrested. He got pulled over.
Q. Okay. And then what happened?
A. Then while I had the phone, Juan
Rodriguez called. I answered the phone. He
told me that --
[Assistant Prosecutor]: Objection, hearsay.
[Judge]: Sustained.
Q. Did Juan Rodriguez ask you to do
anything?
A. Yes, ma’am.
Q. And as a result of Juan Rodriguez
asking you to do something, what did you do?
A. I called the cab, Liberty Cab . .
. and asked them, can I get a cab to Jersey.
He said I have to wait about 30 minutes, 30,
45 minutes, for a cab to take me to Jersey.
Q. Did Juan tell you he had any money on
him?
A. No, no, ma’am.
Q. What did he tell you he had on him?
A. He told me --
[Assistant Prosecutor]: Objection.
A. He told me he had two watches,
ma’am.
[Judge]: Sustained.
Q. Did you have any reason to believe
after speaking with Juan that he had money
8
to go hire his own cab or limousine from
where he was?
A. No ma’am.
Q. And did you go in the cab?
A. Yes, ma’am.
Q. And at some point, did you arrive in
New Jersey?
A. Yes, ma’am.
Q. And what happened when you arrived in
New Jersey?
A. When I got in front of the hotel,
I called him back and told him I was in
front of the hotel, to come outside, but as
soon as I looked around, there was a lot of
cops around and they pulled me out the car
and leave me on the floor and asked me my
name. I said my name is Osborne Maloney.
Defendant admitted that he thought he would be reimbursed
for his taxicab fare by Rodriguez, and that he would be paid
some money after two stolen watches “were swapped.”
At a conference to discuss the jury charge, defense counsel
requested that the jury be instructed on attempted theft by
receiving stolen property as a lesser-included offense of
robbery. The prosecutor objected, arguing such charge lacked a
rational basis in the record for a jury to find that defendant
received stolen property during the commission of a robbery.
The judge denied defendant’s request. The judge also denied
defense counsel’s request that the jury be instructed on
9
conspiracy to commit theft as a lesser-included offense of
robbery.
Defendant did not request an accomplice liability
instruction or object to the final jury charge.
II.
The jury found defendant guilty of second-degree conspiracy
to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1; second-
degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and 2C:18-
2; two counts of first-degree armed robbery, N.J.S.A. 2C:15-1;
second-degree burglary, N.J.S.A. 2C:18-2; second-degree
possession of a weapon (a handgun) for an unlawful purpose,
N.J.S.A. 2C:39-4a; and third-degree criminal restraint, N.J.S.A.
2C:13-2. In fashioning a sentence, the judge found three of the
aggravating factors set by N.J.S.A. 2C:44-1a: (2) the gravity
and seriousness of harm inflicted on the victim; (3) the risk
that defendant will commit another offense; and (9) the need for
deterring defendant and others from violating the law. The
judge found no mitigating factors, N.J.S.A. 2C:44-1b. The judge
imposed concurrent prison terms aggregating eighteen years
subject to a period of parole ineligibility pursuant to the No
Early Release Act, N.J.S.A. 2C:43-7.2, and a five-year term of
parole supervision upon release.
Defendant appealed. The Appellate Division rejected
defendant’s argument that his convictions should be reversed
10
because the judge did not instruct the jury sua sponte on
accomplice liability. The Appellate Division analogized this
case to State v. Crumb, 307 N.J. Super. 204, 221-22 (App. Div.
1997), certif. denied, 153 N.J. 215 (1998), in which the
appellate panel held that a defendant was not entitled to an
accomplice liability instruction where the State prosecuted him
as the principal and the defendant argued that he did not commit
the crime at all. In this case, the Appellate Division
similarly held that, because defendant testified that he had no
involvement either in the planning or commission of the crime
and the State prosecuted defendant only as a principal, the
accomplice liability instruction was not warranted and not
plainly erroneous. Thus, the Appellate Division concluded there
was no rational basis to provide an accomplice liability
instruction to the jury in this case.
The Appellate Division also rejected defendant’s argument
that the judge erred in failing to instruct the jury on two
lesser-included offenses – “‘attempted theft via a theory of
receiving stolen property as a lesser-included offense of the
robbery’, and ‘[] conspiracy to commit theft . . . as a lesser-
included offense of the charge of conspiracy to commit
robbery.’” The Appellate Division noted that “[i]t is clear
from a plain reading of the statute [N.J.S.A. 2C:20-7a] that
receiving stolen property under the present circumstances is not
11
a lesser-included offense of robbery.” The appellate panel
reasoned that “[r]eceiving stolen property requires proof that
the defendant knew the property was stolen, and robbery requires
the use or threat of force during the commission of a theft.”
The Appellate Division also rejected defendant’s argument
that the judge erred in not instructing the jury that receiving
stolen property was a related offense. It determined “that the
two offenses do not share a common factual nucleus in that the
same conduct does not establish the crimes of robbery and
receipt of stolen property.” The panel reasoned that “the
robbery was completed before the alleged ‘attempted theft’ and
‘conspiracy to commit theft’ that defendant had requested be
charged to the jury.” Accordingly, the panel determined
defendant’s requested charges were not related offenses and the
judge had no duty to charge them.
The Appellate Division affirmed defendant’s convictions but
ordered that the convictions for conspiracy to commit armed
robbery and burglary as well as possession of a weapon for an
unlawful purpose merged with the armed robbery conviction, and
remanded for the entry of a corrected judgment. We granted
defendant’s petition for certification. 209 N.J. 97 (2012).
III.
Defendant contends that the Appellate Division erred by
affirming the judge’s failure to charge the jury on accomplice
12
liability. First, defendant argues that the absence of the
charge left the jury unable to consider lesser-included offenses
pursuant to Bielkiewicz, supra, 267 N.J. Super. at 520.
Defendant also argues that the jury had no guidance to
understand the accomplice liability issues if it did not find
defendant liable as a principal. Defendant points to
inconsistencies in the jury’s verdict such as convicting
defendant only of conspiracy to commit burglary and robbery
rather than conspiracy to commit armed robbery, despite
convicting him of armed robbery and armed burglary as an
indication that the jury did not believe he was culpable as a
principal. He argues that the Appellate Division erred in
discounting the possibility that the jury could reject both
parties’ theories and instead reach a “middle-ground” conclusion
that he participated as an accomplice.
Defendant further argues that the judge had a duty sua
sponte to instruct the jury on any lesser-included offenses. He
argues that the Appellate Division erred in concluding that the
charges of attempted theft by receiving stolen property and
conspiracy to commit theft by receiving stolen property were not
lesser-included offenses of robbery.
Defendant argues that the Appellate Division implicitly
relied on State v. Smith, 136 N.J. 245 (1994), in reaching the
erroneous conclusion. Defendant argues that the instant case is
13
more analogous to State v. Freeman, 324 N.J. Super. 463 (App.
Div. 1999), in which the Appellate Division required theft by
deception to be charged as a lesser-included offense of robbery
“where the theft pertained . . . to a portion of the same
property alleged to be the proceeds of the robbery.” Defendant
argues that the property at issue in this case -- two watches --
constituted proceeds of the robbery and that the judge’s failure
to instruct on lesser-included offenses left the jury with stark
choices: either conviction of robbery or acquittal. Finally,
defendant argues that the Appellate Division misinterpreted
prior cases in determining that receiving stolen goods from a
robbery is not a crime related to the robbery of those goods.
The State argues that, under the plain error standard under
Rule 2:10-2, defendant’s convictions do not warrant reversal.
The State notes that defendant neither requested an instruction
on accomplice liability at trial nor objected to the final jury
charge. The State argues that the evidence did not provide a
rational basis to charge defendant with accomplice liability.
The State’s theory was that defendant conspired with his co-
defendants to commit an armed robbery and acted as a principal.
The defense theory was that defendant did not participate in or
even know of the armed robbery and home invasion.
The State also argues that defendant’s reliance on
Bielkiewicz, is misplaced, because an instruction on accomplice
14
liability is not needed when neither party’s theory of the case
suggests that defendant had a different mental state than that
of a principal. According to the State, defendant did not argue
that he had a lesser mental state than his co-defendants.
Rather, he argued that he had no culpable mental state. The
State also maintains that instructing the jury on accomplice
liability would have prejudiced defendant because it would have
provided the jury with an additional basis on which to convict
defendant.
The State also contends that the trial judge correctly
determined that receiving stolen property cannot be a lesser-
included offense of robbery because the former is a crime
against property and the latter is a crime against a person.
Additionally, the State argues that defendant failed to show
that the trial court should have charged attempted receipt of
stolen property as a related offense because that charge does
not “share a common factual nucleus” with robbery, the actual
offense charged. See State v. Thomas, 187 N.J. 119, 130 (2006).
Defendant testified that his participation was limited and did
not commence until after the armed robbery and home invasion
were completed. At the time he decided to travel to Monroe,
Rodriguez and Jakubov were in police custody, he simply drove to
the locale of the crime to give Jakubov a ride home and hoped to
15
get reimbursed for the fare by getting part of the robbery
proceeds.
IV.
When a defendant fails to raise an issue at trial,
appellate review is governed by the plain error standard. R.
2:10-2. “Any error or omission shall be disregarded by the
appellate court unless it is of such a nature as to have been
clearly capable of producing an unjust result.” Ibid.; see
State v. Galicia, 210 N.J. 364, 386 (2012); State v. Macon, 57
N.J. 325, 337 (1971). If a defendant fails to object to a trial
court’s instructions, the failure to challenge the jury charge
is considered a waiver to object to the instruction on appeal.
R. 1:7-2; State v. Torres, 183 N.J. 554, 564 (2005).
In State v. Green, this Court held that “[a]ppropriate and
proper charges to a jury are essential for a fair trial.” 86
N.J. 281, 287 (1981). An erroneous jury charge “when the
subject matter is fundamental and essential or is substantially
material” is almost always considered prejudicial. Id. at 291.
Such errors are “poor candidates for rehabilitation under the
harmless error philosophy.” State v. Simon, 79 N.J. 191, 206
(1979). “[A] presumption of reversible error arises” that can
only be excused if the error is determined to be “‘harmless
beyond a reasonable doubt.’” State v. Collier, 90 N.J. 117, 123
16
(1982) (quoting Chapman v. California., 386 U.S. 18, 24, 87 S.
Ct. 824, 828, 17 L. Ed. 2d 705, 710 (1967)).
N.J.S.A. 2C:2-6 governs accomplice liability, providing in
pertinent part:
a. A person is guilty of an offense if it is
committed by his own conduct or by the
conduct of another person for which he is
legally accountable, or both.
b. A person is legally accountable for the
conduct of another person when . . .
(3) He is an accomplice of such other
person in the commission of an offense;
. . .
c. A person is an accomplice of another
person in the commission of an offense if:
(1) With the purpose of promoting or
facilitating the commission of the offense;
he
(a) Solicits such other person to
commit it;
(b) Aids or agrees or attempts to aid
such other person in planning or
committing it . . . .
[N.J.S.A. 2C:2-6.]
Whether a defendant is being prosecuted as a principal or
an accomplice, “the State must prove that he possessed the
mental state necessary to commit the offense.” State v.
Whitaker, 200 N.J. 444, 458 (2009) (citing N.J.S.A. 2C:2-2(a)).
“To be found guilty as an accomplice, a defendant must not only
share the same intent as the principal who commits the crime,
17
but also must ‘at least indirectly participate[] in the
commission of the criminal act.’” Id. at 459 (quoting
Bielkiewicz, supra, 267 N.J. Super. at 528).
If the State’s theory is “that a defendant acted as an
accomplice, the trial court is obligated to provide the jury
with accurate and understandable jury instructions regarding
accomplice liability even without a request by defense counsel.”
Bielkiewicz, supra, 267 N.J. Super. at 527. Furthermore, “when
an alleged accomplice is charged with a different degree offense
than the principal or lesser[-]included offenses are submitted
to the jury, the court has an obligation to ‘carefully impart[]
to the jury the distinctions between the specific intent
required for the grades of the offense.’” Id. at 528 (quoting
State v. Weeks, 107 N.J. 396, 410 (1987)). In Bielkiewicz, two
co-defendants were found guilty of murder after a victim was
killed by one gunshot wound to the chest. Id. at 525-26.
Because witnesses could not definitively identify which
defendant fired the fatal shot, the State’s theory was the one
defendant was guilty of murder as the principal and the other
was guilty as an accomplice. Id. at 526. The Appellate
Division determined that, based on the State’s theory of the
case, the judge was obligated to “provide the jury with accurate
and understandable instructions regarding accomplice liability
for murder.” Id. at 527. The Appellate Division reversed
18
defendants’ convictions because the judge failed to charge on
accomplice liability. Id. at 536.
When the State’s theory of the case only accuses the
defendant of being a principal, and a defendant argues that he
was not involved in the crime at all, then the judge is not
obligated to instruct on accomplice liability. See, e.g.,
Crumb, supra, 307 N.J. Super. at 221-22; State v. Oliver, 316
N.J. Super. 592, 597 (App. Div. 1998), aff’d, 162 N.J. 580(2000); State v. Rue, 296 N.J. Super. 108, 115-16 (App. Div.
1996), certif. denied, 148 N.J. 463 (1997).
N.J.S.A. 2C:1-8d governs lesser-included offenses. The
statute provides:
A defendant may be convicted of an offense
included in an offense charged whether or
not the included offense is an indictable
offense. An offense is so included when:
(1) It is established by proof of the same
or less than all the facts required to
establish the commission of the offense
charged; or
(2) It consists of an attempt or conspiracy
to commit the offense charged or to commit
an offense otherwise included therein; or
(3) It differs from the offense charged only
in the respect that a less serious injury or
risk of injury to the same person, property
or public interest or a lesser kind of
culpability suffices to establish its
commission.
[N.J.S.A. 2C:1-8d.]
19
N.J.S.A. 2C:1-8e provides that a court cannot charge the jury on
a lesser-included offense “unless there is a rational basis for
a verdict convicting the defendant of the included offense.”
This Court has affirmed the statutory requirements, finding that
“whether an included offense charge is appropriate requires (1)
that the requested charge satisfy the definition of an included
offense set forth in N.J.S.A. 2C:1-8d, and (2) that there be a
rational basis in the evidence to support a charge on that
included offense.” Thomas, supra, 187 N.J. at 131.
In Thomas, supra, this Court also addressed whether a judge
sua sponte must charge the jury on a related offense not
requested by either party. Id. at 133. This Court first
distinguished between included offenses and related offenses,
explaining that “[w]hether an offense is an included offense of
another charge requires a comparison of the statutory elements
of each charge.” Id. at 129. If the State requests an
instruction on a lesser-included offense, it may be given only
if the offense satisfies N.J.S.A. 2C:1-8d. Id. at 131. If the
defendant makes such a request, the court must focus on whether
there is a rational basis in the evidence to support such a
charge. Id. at 131-32. If neither party requests a charge on a
lesser-included offense, the court must sua sponte provide an
instruction “‘when the facts adduced at trial clearly indicate
that a jury could convict on the lesser while acquitting on the
20
greater offense.’” Id. at 132 (quoting State v. Jenkins, 178
N.J. 347, 361 (2004)).
In contrast, related offenses are those that “share a
common factual ground, but not a commonality in statutory
elements, with the crimes charged in the indictment.” Ibid.
This Court held that “due to constitutional grand jury and
notice considerations, trial courts are under no obligation to
give, sua sponte, a related offense instruction that is not
requested by either the prosecution or the defense.” Id. at
123. A court may instruct on a related offense 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.” Id. at 133. This Court emphasized that a
trial court has no obligation to “‘scour the statutes to
determine if there are some uncharged offenses of which the
defendant may be guilty.’” Ibid. (quoting State v. Brent, 137
N.J. 107, 118 (1994)).
Robbery has been defined as a theft during which a
defendant: “(1) [i]nflicts bodily injury or uses force upon
another; or (2) [t]hreatens another with or purposely puts him
in fear of immediate bodily injury; or (3) [c]ommits or
threatens immediately to commit any crime of the first or second
degree.” N.J.S.A. 2C:15-1a. On the other hand, one commits the
offense of theft by receiving stolen property “if he knowingly
21
receives or brings into this State movable property of another
knowing that it has been stolen, or believing that it is
probably stolen. . . . ‘Receiving’ means acquiring possession,
control or title . . . of the property.” N.J.S.A. 2C:20-7a.
In examining whether a theft charge should be given in a
robbery case, the Appellate Division in Freeman, noted that,
“[i]n determining whether a theft charge of lesser degree, even
if not a lesser-included offense, should be charged, the Court
requires a careful analysis of not only the factual underpinning
of the lesser charge but the harm to be protected against.” 324
N.J. Super. at 470 (emphasis added).
V.
We hold that the judge did not commit plain error by
failing to sua sponte instruct the jury on accomplice liability.
Further, even if defendant had requested such a charge, the
accomplice liability instruction would not have been warranted
because it was not grounded in a rational basis in the trial
evidence.
First, we note that defendant’s reliance on inconsistencies
in the jury’s verdict to bolster his argument that the jury
might have convicted him as an accomplice rather than a
principal is unpersuasive because the verdicts are returned long
after the jury has been instructed. Moreover, “[o]ur system of
justice has long accepted inconsistent verdicts as beyond the
22
purview of correction by our court[].” State v. Kelly, 201 N.J.
471, 487 (2010).
Moreover, defendant was charged in the indictment as a
principal in the robbery and attempted murder. The State
presented proofs consistent with the theory that Rodriguez and
defendant were the only conspirators who entered the home and
interacted with Sam and his wife. Rodriguez testified that
defendant shot Sam. In addition, defendant’s DNA was recovered
from items found in Jakubov’s Lexus, which was driven to and
from the scene of the crime, long before the time he admitted
that he returned to Monroe Township in a taxi.
Defendant, on the other hand, testified that he did not go
to the victims’ home the night of the robbery and shooting.
Rather, he admitted that his only involvement in this case arose
when he answered a call from Rodriguez made to Jakubov’s
telephone, during which Rodriguez asked defendant to pick him up
from a hotel in New Jersey. Defendant went to the hotel
expecting to receive the proceeds of some of the items stolen
during the armed robbery.
We conclude that none of the evidence presented by the
State could support a jury finding that defendant was liable as
an accomplice rather than as a principal. Therefore, defendant
suffered no prejudice by the judge’s failure to sua sponte
charge the jury on accomplice liability. See, e.g., Crumb,
23
supra, 307 N.J. Super. at 221-22; see also Oliver, supra, 316
N.J. Super. at 597; Rue, supra, 296 N.J. Super. at 115-16.
Further, despite defendant’s arguments, the evidence could
not support a finding that defendant had a lesser intent than
that required to commit robbery. See Crumb, supra, 307 N.J.
Super. at 221-22. The jury had two options. It could credit
Rodriguez’s testimony that defendant was equally involved in
planning and committing the robbery, or it could credit
defendant’s contrary testimony. The evidence could not support
a finding that defendant was guilty as an accomplice in the
armed robbery, shooting or burglary.
We also conclude that defendant’s request that the judge
instruct the jury on two lesser-included offenses of robbery --
attempted theft by receiving stolen property and conspiracy to
receive stolen property -- was properly denied. The statutory
elements of those offenses, set forth above, do not overlap.
Compare N.J.S.A. 2C:15-1a, with N.J.S.A. 2C:20-7a. We agree
with the trial court and the Appellate Division’s reasoning that
robbery is a crime against a person, which focuses on the use of
force or threatened use of force against the victim. See
N.J.S.A. 2C:15-1a. Attempted theft by receipt of stolen
property and conspiracy to receive stolen property, on the other
hand, are property crimes. See N.J.S.A. 2C:20-7a.
24
Beyond the lack of shared statutory elements, the record
does not provide a rational basis for charging attempted theft
by receipt of stolen property or conspiracy to receive stolen
property as a lesser-included offense of robbery. See Thomas,
supra, 187 N.J. at 131; see also Smith, supra, 136 N.J. at 250
(concluding that theft of services is not a lesser-included
offense of armed robbery because they have different “operative
ingredient[s] -- deception in the one case, the threat of
immediate bodily injury in the other”). As discussed
previously, defendant testified that he had no involvement
whatsoever with the conspiracy, burglary, armed robbery or
shooting of the victim. That factual scenario could not support
a finding that defendant’s requested attempt and conspiracy jury
charges were lesser-included offenses.
Thus, our review of the record leads to the conclusion that
the receipt of stolen property offenses do not share a common
factual nucleus with the robbery charge in this case. See
Thomas, supra, 187 N.J. at 130 (citing N.J.S.A. 2C:1-8a). The
robbery took place at the Shnayder’s home hours before Rodriguez
contacted defendant to request a ride home. Defendant adamantly
denied being present at the robbery and instead testified that
he only went to the hotel in the early morning hours after the
robbery to pick up watches that were stolen from the Shnayder’s
home.
25
The issue of related offenses was not raised by defendant
in the Appellate Division. Thus, we merely note that the
watches alone are not enough to establish a common factual
nucleus between the robbery charge and attempted theft by
receiving stolen property.
By way of summary, we hold that the Appellate Division
correctly decided that the trial court did not err by failing to
sua sponte instruct the jury on accomplice liability and by
rejecting defendant’s request to charge the jury on the asserted
lesser-included offenses of attempted theft by receiving stolen
property and conspiracy to receive stolen property.
VI.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, HOENS, and
PATTERSON; and JUDGE CUFF (temporarily assigned) join in JUDGE
RODRIGUEZ’s (temporarily assigned) opinion. JUSTICE ALBIN filed
a separate, dissenting opinion.
26
SUPREME COURT OF NEW JERSEY
A-64 September Term 2011
068877
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OSBORNE S. MALONEY,
Defendant-Appellant.
JUSTICE ALBIN, dissenting.
Defendant Osborne Maloney was indicted for a number of
offenses relating to a home invasion, including second-degree
conspiracy to commit burglary (N.J.S.A. 2C:18-2 and N.J.S.A.
2C:5-2), second-degree aggravated assault (N.J.S.A. 2C:12-
1(b)(1)), first-degree attempted murder (N.J.S.A. 2C:11-3(a)(1)
and N.J.S.A. 2C:5-1), and first-degree armed robbery (N.J.S.A.
2C:15-1). Codefendant Juan Rodriguez implicated Maloney in the
robbery and shooting of the homeowner. Maloney, however, denied
committing those crimes and testified that the only crime he
committed was agreeing to receive stolen property from
Rodriguez. Maloney requested that the trial judge instruct the
jury on attempted theft by receiving stolen property. Although
Maloney’s attorney wrongly characterized attempted theft by
receiving stolen property as a lesser-included offense of
robbery, receiving stolen property clearly was a related offense
1
to robbery. Nevertheless, the trial judge refused to charge the
jury on attempted theft by receiving stolen property -- the
offense Maloney admitted committing.
In my view, the trial judge erred in not giving the charge
to the related offense of receiving stolen property. That is
because the jury was left with rendering an all-or-nothing
outcome -- either convict Maloney of the offenses related to the
home invasion or acquit him despite his admission to committing
the crime of attempted receipt of stolen property.
Consequently, if the jury believed Maloney, it was left with the
bleak option of completely acquitting him even though he
admitted to committing the crime of attempted theft. By the
standards of our jurisprudence, failing to give the jury the
opportunity of convicting Maloney of the offense he said he
committed had the capacity of causing an unjust result. I
therefore respectfully dissent.
I.
A trial judge is required to charge the jury with offenses
related to those in the indictment, provided that the defendant
requests the charge and the charge is factually supported by the
record. N.J.S.A. 2C:1-8(e); State v. Sloane, 111 N.J. 293, 299
(1988) (citing State v. Crisantos, 102 N.J. 265, 278 (1986)).
The purpose of this rule is to avoid presenting the jury with an
2
“all-or-nothing” choice, a choice between convicting a defendant
of an offense greater than the one he committed and not
convicting him at all despite his guilt of a lesser offense.
See State v. Garron, 177 N.J. 147, 180 (2003) (“No defendant
should be convicted of a greater crime or acquitted merely
because the jury was precluded from considering a lesser offense
that is clearly indicated in the record.”), cert. denied, 540
U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). We have
expressed concern that a jury faced with that stark alternative
may be more likely to err on the side of convicting rather than
acquitting. See Keeble v. United States, 412 U.S. 205, 212-13,
93 S. Ct. 1993, 1997-98, 36 L. Ed. 2d 844, 850 (1973) (“Where
one of the elements of the offense charged remains in doubt, but
the defendant is plainly guilty of some offense, the jury is
likely to resolve its doubts in favor of conviction.”), quoted
in Sloane, supra, 111 N.J. at 299.
In determining whether an uncharged offense is related to
an offense charged in an indictment, we do not compare the
statutory elements between the two, as we would if considering a
lesser-included offense. State v. Thomas, 187 N.J. 119, 129-30
(2006). Instead, we focus on “whether the offense charged and
the related offense share a common factual nucleus.” Id. at
130. Our jurisprudence does not provide a neat definition of
what constitutes a “common factual nucleus” shared by a charged
3
offense and an uncharged related offense. However, in this
case, it would be fair to say that the stolen property from a
robbery that is also the factual predicate for receiving stolen
property is the “common factual nucleus” shared by both crimes.
Robbery is nothing more than an aggravated theft. See
N.J.S.A. 2C:15-1(a). A theft occurs when a person “unlawfully
takes, or exercises unlawful control over, movable property of
another with purpose to deprive him thereof.” N.J.S.A. 2C:20-
3(a). Receiving stolen property occurs when a person “knowingly
receives . . . movable property of another knowing that it has
been stolen, or believing that it is probably stolen.” N.J.S.A.
2C:20-7. The stolen property is the common nucleus between the
two offenses. That prosecutors routinely charge defendants
alternatively with theft and/or receiving stolen property is a
recognition of the close tie between the two offenses. Thus, in
a prosecution with alternative theories, a jury presented with
facts establishing that a defendant is knowingly in possession
of stolen property does not have to acquit if the State cannot
prove theft beyond a reasonable doubt. The same logic applies
here, but to the advantage of defendant.
II.
Defendant was charged with robbery and requested that the
jury be given the option of convicting him of the lesser,
4
related offense of attempted receipt of stolen property. The
request was defendant’s consent to forgo any objection he could
have raised to submission to the jury of an offense not
contained in the indictment. See Thomas, supra, 187 N.J. at
132-33. That defendant’s lawyer inartfully requested the charge
by characterizing the receiving charge as a lesser-included
offense rather than a related offense should not make a
difference. Certainly, formalism should not prevail over
substance, particularly when the requested charge is supported
by the record.
Here, the jury was given the all-or-nothing alternative
that our jurisprudence cautions against. Defendant’s request
for the related-offense charge and the trial court’s failure to
give the charge caused presumptive prejudice. State v. Nelson,
173 N.J. 417, 446 (2002) (“‘[S]o critical is the need for
accuracy that erroneous instructions on material points are
presumed to be reversible error.’”) (quoting State v. Martin,
119 N.J. 2, 15 (1990)). In short, because the trial judge’s
error had the capacity to cause an unjust result, defendant
should be granted a new trial. See R. 2:10-2. I therefore
cannot agree with the majority’s affirmance of defendant’s
conviction. For this reason, I respectfully dissent.
5
SUPREME COURT OF NEW JERSEY
NO. A-64 SEPTEMBER TERM 2011
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OSBORNE S. MALONEY,
Defendant-Appellant.
DECIDED October 16, 2013
Chief Justice Rabner PRESIDING
OPINION BY Judge Rodriguez
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Albin
CHECKLIST AFFIRM REVERSE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE HOENS X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6 1
1