On March 22, 2021, the New Jersey Supreme Court decided the Mercer County case of State v. Andrea Dunbrack. The principal issue under N.J.S.A. 2C:15-1 was whether under the circumstances of the robbery case a lesser-included theft charge was required to be presented to the jury.
Justice Pierre-Louis, my Rutgers Law School classmate, wrote for the unanimous Court in relevant part: Having established the proper standard, we must determine whether the facts of this case jumped off the page such that the trial judge should have given the theft charge sua sponte. As detailed at length above, police arrived on the scene to find the victim on the ground, verbally unresponsive, in the fetal position, naked, bloodied, and burned by a small fire still ablaze nearby. His clothes were strewn about on the ground and on the front passenger seat of Dunbrack’s car, along with his passport, wallet, and money. A gun stained with the victim’s blood lay on the driver’s seat, and police later retrieved another gun on Dunbrack’s person when they searched her. Rodriguez fled as police approached and police later arrested him with the victim’s cell phone in his pocket. The victim testified that he thought defendants were going to kill him and that he feared for his life. Those facts, quite frankly, do not jump off the page as the basis for a charge of theft. And for the reasons we will discuss, even Dunbrack’s version of events do not support that charge.
Similar to Cassady, it is hard to consider the facts in this case — as presented by either side — as obviously indicating that a theft, as opposed to robbery, might have occurred. The idea that the facts of this case “jump off the page” as theft and therefore required the trial court to sua sponte charge theft as a lesser included offense is as implausible as the parallel argument found “absolutely ludicrous” in Cassady. For a theft charge to jump off the page, it would require the facts here to somehow support a finding that the victim was not threatened in any way and was not in fear of his life during the course of the taking of his belongings. The trial court was not obligated to sift through the record to formulate a scenario in which the defendants’ act of inflicting bodily injury on N.R. occurred separate and apart from defendants stealing N.R.’s belongings.
It can be a good defense strategy to argue that an assault later followed by an uncontemplated theft occurred instead of a robbery. This is because thefts and third-degree assaults are not NERA offenses. NERA (No Early Release Act) offenses require an imposition of an 85% parole disqualifier that does not apply to thefts or assaults that do not involve serious bodily injury.