State v. Smith ( 1994 )

The opinion of the Court was delivered by

CLIFFORD, J.

We granted certification, 184 N.J. 561, 636 A.2d 519 (1993), to review the Appellate Division’s reversal of defendant’s convictions for armed robbery, a violation of N.J.S. A 2C:15-1, and possession of a weapon for an unlawful purpose, contrary to N.J.S.A 2C:39~ 4d. In an unreported opinion the Appellate Division held that our decision in State v. Talley, 94 N.J. 385, 466 A.2d 78 (1983), “mandates a reversal because of the trial court’s refusal to allow a jury to convict defendant for theft of services,” a disorderly-persons offense under N.J.S.A. 2C:20-8 and N.J.S.A 2C:20-2b(3). Because we are satisfied that Talley does not apply in the circumstances before us, we reverse and reinstate defendant’s convictions.

I

On May 23, 1990, a taxi driver, Maroun J. Maroun, picked up defendant in New Brunswick and drove him to an Edison motel. Maroun claimed that defendant had attempted to pay the seven-dollar fare with a counterfeit one-hundred-dollar bill. The driver refused to accept the bill because he saw that defendant had a ten-dollar bill in his hand. In response, defendant drew a large knife and took the victim’s money, amounting to about $120 in cash. Defendant fled, only to be arrested shortly thereafter with $124 in his pocket. The police failed to find a knife.

Defendant admitted that he had attempted to pay with a counterfeit bill, but claimed that he had merely left the cab without paying and that he had never had a knife. He further claimed that the cash in his pocket constituted what remained of his paycheck. Defendant produced two witnesses, one of whom testified that defendant had received his paycheck on the day of the theft and the other that she had taken defendant to a check-cashing establishment that day.

The trial court rejected defendant’s request to instruct the jury on theft of services. It limited its instruction to the offenses contained in the indictment, namely, armed robbery and the weapon-possession charge, and explained to the jury that if it believed defendant’s version of the events and decided that defendant had committed theft of services only, it must find defendant not guilty of the charges brought against him. The jury returned a verdict of guilty on both counts. Merging the charge of possession into the robbery charge, the trial court sentenced defendant to twenty years imprisonment with a parole-ineligibility period of six years and eight months pursuant to the persistent-offender provision, N.J.S.A 2C:44-3a. It denied defendant’s post-trial motion for a mistrial based on the jury instructions.

Defendant based his appeal to the Appellate Division on the single contention that the trial court had improperly denied his request for a jury instruction on what defendant characterized as “the lesser-included offense” of theft of services. Because the Appellate Division concluded that the record contained “evidence of a single integrated act of theft,” it reversed. Quoting from State v. Sloane, 111 N.J. 293, 299, 544 A.2d 826 (1988), the court declared that a trial court should give a jury an instruction that the facts support and the defendant requests, to protect against a jury convicting a defendant of a greater charge solely to ensure that the defendant not go free.

In seeking reversal of the Appellate Division judgment, the State poses as the sole issue whether Talley, supra, 94 N.J. 385, 466 A.2d 78, “require[s] consolidation of two unintegrated thefts, involving distinct properties, misappropriated by distinct methods with distinct victims.”

II

-A-

Primarily, we address the issue of lesser-included charges. To be considered a lesser-included offense, a crime either must be established by proof of the same or less than all the facts used to establish the greater charge, N.J.S.A 2C:l-8d(l), or it must differ from the crime charged only through a lower degree of risk of injury to the victim or a lower degree of culpability of the defendant, N.J.S.A 2C:l-8d(3).

Here the theft of services of the seven-dollar cab fare is not established by the same or less than all the facts required to prove the armed robbery of the cab driver. The theft-of-services statute, N.J.S.A 2C:20-8a, renders a person guilty of theft “if he purposely obtains services [that] he knows are available only for compensation, by deception or threat, or by false token, slug, or other means.” The same statute defines “services” as including “transportation,” and further provides:

Where compensation for service is ordinarily paid immediately upon the rendering of such service, as in the case of hotels and restaurants, absconding without payment or offer to pay gives rise to a presumption that the service was obtained by deception as to intention to pay.

Defendant’s testimony at trial was that he did not rob Maroun, did not threaten him, did not have a knife, did not take any money from him, did not force Maroun to give him anything, and that he did nothing more than “cheat[ ] him out of the cab fare by not paying him.” The State’s case, on the other hand, rested on proof that defendant had threatened Maroun with a knife and had robbed him of about $120. The offense of theft of services— deceptively and purposely obtaining a cab ride without paying the fare—is not established by evidence that is the same as or less than that required to prove the wholly different “taking” involved in forcing the victim to turn over $120 at knifepoint. The operative ingredient—deception in the one case, the threat of immediate bodily injury in the other—is sharply different for each offense. In this case, because the element of deception is an essential ingredient of obtaining services without payment but is not required for a robbery conviction, theft of services cannot be said to be a lesser-included offense of robbery. See Talley, supra, 94 N.J. at 393, 466 A.2d 78 (declaring theft by deception not “included offense” of robbery under N.J.SA 2C:l-8d(l), because it contains element of fraudulent taking, not required for robbery conviction).

Nor does the “lower risk or lower degree of culpability” analysis required under N.J.S.A 2C:l-8d(3) yield a different result. A threat of immediate bodily injury, with or without a knife, with its greater attendant culpability and risk of injury, establishes an offense that is different from theft of services not simply in degree but in kind. The first poses a risk of physical injury, but the second involves at most a financial loss. We conclude that under these facts, theft of services is not a lesser-included offense of robbery under N.J.S.A 2C:l-8d(3).

-B-

Defendant contends that because theft of services is a “related lesser offense” of robbery, he was entitled, as the Appellate Division held, to an instruction on theft of services under N.J.S.A. 2C:20-2a, which consolidates acts of theft under Chapter 20 of the Code of Criminal Justice in a single offense. We hold that even in light of the “consolidation” statute, robbery charges do not include theft of services as a related lesser offense.

The Legislature has provided that

[c]onduct denominated theft in this chapter constitutes a single offense, but each episode or transaction may be the subject of a separate prosecution and conviction. A charge of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the indictment or accusation, subject only to the power of the court to ensure fair trial by granting a bill of particulars, discovery, a continuance, or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

[N.J.SA. 2C:20-2a.]

The Legislature’s purpose in enacting the “consolidation” provision was to forestall a defendant’s attempt to defeat one theft charge through a procedural sleight-of-hand, namely, by arguing that defendant had committed a different theft offense, ie., that defendant had misappropriated property by some means other than the kind of theft contemplated by the indictment. Talley, supra, 94 N.J. at 391, 466 A.2d 78. We thus held in Talley that “[b]y virtue of the ‘consolidation’ provision * * *, a defendant charged with robbery is now on notice that any conduct denominated as theft is within the four comers of a robbery indictment.” Id. at 393, 466 A.2d 78. We based our decision on the notion that “the adversary system cannot be permitted to deteriorate into a mere game in which defendant brazenly manifests his contempt for the system by openly admitting his guilt of an offense and then seeking exoneration on the basis of some arcane notion of pleading.” Id. at 394, 466 A.2d 78.

This appeal presents a related issue. Defendant seeks not exoneration but a conviction for a lesser offense, entitling him, he says, to an instruction on a disorderly-persons offense in addition to that on the first-degree crime charged. We reject his interpretation of N.J.S.A 2C:20-2a and of related lesser offenses. Statutory consolidation covers all thefts that are “linked together by the concept of the ‘involuntary transfer of property.’ ” Talley, supra, 94 N.J. at 394, 466 A.2d 78. That is, statutory consolidation reaches all different methods for the involuntary transfer of the same property. In the instant case, however, we are concerned with two separate harms, not two versions of the means through which defendant brought about the same harm—the involuntary transfer of a single form of property. The State charged that defendant stole the victim’s money at knifepoint. Defendant claims that he stole only the service of the taxi ride. The fact that defendant argues a different means of involuntary transfer does not permit consolidation of the harm he admits with the harm that the State charges.

We also note that the issue of related lesser offenses does not raise the “difficult constitutional questions,” Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844, 847 (1973); accord State v. Muniz, 228 N.J.Super. 492, 505, 550 A.2d 487 (App.Div.1988), certif. denied, 127 N.J. 321, 604 A.2d 597 (1990), implied by a defendant’s right to have a jury consider instructions on lesser-included offenses rationally supported by the evidence. The danger of a compromise verdict of guilt on the greater charge when the trial court refiises to instruct the jury on a lesser-included offense indicated by the proofs and requested by the defendant, see Sloane, supra, 111 N.J. at 299, 544 A.2d 826, is not posed by refusal to charge the jury on lesser offenses that are not included in the offense on which the defendant has been indicted. We hold, therefore, that even considering the statutory “consolidation” provision, theft of services is not within the four corners of a robbery indictment when the theft underlying the robbery was the wrongful taking of the victim’s money.

Finally, we are persuaded by the State’s contention that the exercise of prosecutorial charging discretion includes the authority to decline to prosecute defendant for an offense that defendant admits having committed, if that admission is inconsistent or incongruent with the theory of the State’s case. In prosecuting defendant for armed robbery and possession of a weapon for an unlawful purpose, the State was prepared to have the jury acquit defendant if it believed he had committed only the offense of theft of services. A defendant should not be allowed to alter the State’s trial strategy by admitting the commission of an unrelated, less serious offense, and then having the court charge the jury, over the State’s objection, that it can return a verdict on that offense.

Ill

Judgment reversed. Defendant’s convictions are reinstated.