NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant, Yancy Young, appeals from his conviction after trial. On appeal defendant argues the trial court erred in declining to instruct the jury on the lesser-included offense of theft, improperly charging the jury as to accomplice liability, that the aggregate of errors requires reversal and that his sentence was excessive and unduly punitive. As we find it was erroneous for the court to deny defendant's request to instruct the jury on a lesser-included offense, we are constrained to reverse.
On June 8, 2011, Detective Wilfredo Delgado, part of the Trenton Tactical Anti-Crime Unit, was in an unmarked vehicle working undercover. Delgado observed defendant approach the vehicle, look inside, and continue walking. Delgado watched defendant approach an individual, later identified as Daryl Davis. Defendant pointed to Delgado's vehicle and Davis slowly approached. Delgado looked towards a third man, later identified as Tahj Hill, who said "go ahead" and pointed at Delgado's vehicle.
Davis attempted to open the passenger door, but it was locked. Delgado slightly opened the passenger window and asked, "What do you want?" to which Davis replied, "Give it up." Davis lifted his shirt and revealed the handle of a gun in his pocket. At that moment, Delgado's partner called his cell phone and Delgado answered. Davis appeared startled, backed away from the vehicle, and started walking down the street. Delgado's supporting units arrived and stopped Davis, Hill and defendant. An operable handgun along with one.38 caliber shell casing and five hollow nose bullets were found on Davis.
On July 7, 2011, a Mercer County Grand Jury charged defendant, Davis and Hill with: first-degree robbery, N.J.S.A. 2C:15-1a(2) and 2C:2-6; first-degree attempted carjacking, N.J.S.A. 2C:15-1, 2C:5-1 and 2C:2-6; second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b and 2C:2-6; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a and 2C:2-6; third-degree receiving stolen property, N.J.S.A. 2C:20-7a and 2C:2-6; and fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f and 2C:2-6. Defendant was separately charged with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.
During the trial, Davis and Hill testified they did not know each other or defendant and that, in contradiction to Delgado's testimony, Davis was acting alone. Notwithstanding, the jury found defendant guilty on all counts except for possession of hollow nose bullets.
Prior to the charge, defendant requested the jury be instructed on the lesser-included offense of theft. The court, in denying the request, found:
[T]here's no rational basis to give a third-degree theft of movable property under the facts presented to this jury. The defendant has taken the position that he knew nothing and was not associated with Daryl Davis, as opposed to saying, well, I kind of knew that perhaps he was going to commit a theft, but had no idea he was going to have a weapon with him. So since I find there's no rational basis to give this third-degree theft, the court is not inclined to give it as a lesser-included offense.
Defendant was sentenced to a twenty-six-year prison term with an eighty-five percent parole disqualifier subject to the No Early Release Act.
On appeal defendant argues:
POINT I
THE COURT ERRONEOUSLY DECLINED TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF THEFT FOR COUNT ONE EVEN THOUGH IT WAS REQUESTED AND HAD A RATIONAL BASIS IN THE RECORD, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS AND A FAIR TRIAL.
POINT II
THE COURT IMPROPERLY CHARGED THE JURY AS TO ACCOMPLICE LIABILITY, THEREBY CONFUSING THE JURY, AS EVIDENCE BY THEIR REQUEST FOR CLARIFICATION DURING DELIBERATIONS, WHICH DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. (NOT RAISED BELOW).
POINT III
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW).
POINT IV
DEFENDANT'S CASE SHOULD BE REMANDED FOR RESENTENCING AS HIS SENTENCE WAS EXCESSIVE AND UNDULY PUNITIVE.
It is well-settled that appropriate and proper jury charges are essential in a criminal case to assure a fair trial. State v. Reddish, 181 N.J. 553, 613 (2004); State v. Green, 86 N.J. 281, 287 (1981).
N.J.S.A. 2C:1-8(e) directs that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." See State v. Sinclair, 49 N.J. 525, 540 (1967). In State v. Brent, 137 N.J. 107, 113-14 (1994), the Supreme Court commented on N.J.S.A. 2C:1-8(e):
The statute has been characterized and construed as requiring not only a rational basis in the evidence for a jury to convict the defendant of the included offense but requiring also a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense.
When a defendant requests a lesser-included offense charge, strict adherence to the definition of "included" under N.J.S.A. 2C:1-8(d) "is less important . . . than whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." Brent, supra, 137 N.J. at 117. Thus, "[w]hen a lesser-included offense charge is requested by a defendant, . . . the trial court is obligated, in view of defendant's interest, to examine the record thoroughly to determine if the rational-basis standard has been satisfied." State v. Crisantos, 102 N.J. 265, 278 (1986) (citing State v. Powell, 84 N.J. 305, 318-19 (1980)). The question is not whether the jury is likely to accept the defendant's theory, but whether it would have a rational basis for accepting that theory. State v. Mejia, 141 N.J. 475, 489 (1995). A court's failure to instruct the jury on a lesser-included offense requested by defendant, and for which the evidence provides a rational basis, warrants reversal of a defendant's conviction. Brent, supra, 137 N.J. at 118.
The factors a court must consider to determine whether a lesser-included offense should be charged were set forth in State v. Thomas, 187 N.J. 119 (2006). There, the Court held "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:1-8(d), 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. Pursuant to N.J.S.A. 2C:1-8(d), a lesser-included offense occurs 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.
Theft is a lesser-included offense of robbery, and it is appropriate to charge theft if "there is a question whether the defendant's act of `inflict[ing] bodily injury,' `us[ing] force upon another' or `threat[ening] another with [or] purposefully put[ting] him in fear of bodily injury' occurred `in the course of committing a theft.'" State v. Harris, 357 N.J.Super. 532, 539 (App. Div. 2003) (alterations in original) (quoting State v. Jordan, 240 N.J.Super. 115, 119-21 (App. Div.), certif. denied, 122 N.J. 328 (1990)); see Mejia, supra, 141 N.J. at 495 ("The Code . . . incorporates theft as an element of robbery. In this sense, all robberies are thefts, but not all thefts are robberies."), overruled on other grounds by State v. Cooper, 151 N.J. 326, 377-78 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L. Ed. 2d 681 (2000); N.J.S.A. 2C:15-1(a) (stating a person commits robbery if "in the course of committing a theft, he . . . [t]hreatens another with or purposely puts him in fear of immediately bodily injury"); N.J.S.A. 2C:20-3(a) (defining theft of movable property); N.J.S.A. 2C:1-8(d) (stating that an offense is "included" when it is established by "proof of the same or less than all the facts required to establish the commission of the offense charged" or "[i]t consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein").
It is clear defendant was convicted on an accomplice theory of liability. "[A]n accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal." State v. Whitaker, 200 N.J. 444, 449 (2009) (citation omitted) (emphasis added). After being instructed on "liability for another's conduct," N.J.S.A. 2C:2-6, without receiving instructions on lesser-included charges, the jury found defendant guilty of first-degree robbery.
The trial testimony of Delgado, the State's witness, taken alone and relative to defendant's participation in the events, provided a rational basis to charge attempted theft, a crime which does not require proof of the injury/force element of robbery.1 At that stage of the proceedings, when the request to charge was made and the Brent standard was to be employed, there was evidence to support the jury's consideration of defendant's "theory" of his non-involvement or, in the alternative, if involvement, whether he shared the same mental state as Davis, i.e., the purpose to commit the robbery with force or a deadly weapon. As such, the jury could have acquitted defendant of the robbery and convicted him of attempted theft. State v. Savage, 172 N.J. 374, 397 (2002); see Brent, supra, 137 N.J. at 117. Thus, the decision by the court not to instruct the lesser-included offense was "clearly capable of producing an unjust result. . . ." R. 2:10-2.2
Given our determination that it was error to deny defendant's request to instruct the jury on the lesser-included offense of attempted theft, we need not address the remaining arguments raised.
Reversed.
