The New Jersey Supreme Court continued in relevant part: In summation, counsel for Rodriguez argued, without specifically mentioning the case, that this matter is similar to defendant’s claim in State v. Lopez (2006), that the violence and the assault occurred separate and apart from the theft. Defense counsel stated: The items that [N.R.] said he left on the seat, Rodriguez goes over to them. He picks up some of the items. You can infer that he picked up the cell phone then, ladies and gentlemen, but I suggest to you that that’s not a robbery.
And the judge will instruct you on the law and you go by the instructions on the law. But I suggest to you that’s not a robbery, ladies and gentlemen. That is the same as two people get into an altercation. After the fight, when it’s over, somebody walks away. Somebody’s knocked out. However, after the fight if somebody’s chain is broken and it’s on the ground, and the other person picks it up or their phone, and they don’t see it, and they pick it up, that may be something that’s not appropriate, but that’s not a robbery.
In Lopez, we held that “where a violent fracas occurs for reasons other than theft, and the perpetrator later happens to take property from the victim,” the perpetrator might be guilty of assault and theft “but not of robbery” because “the violence and the theft are unconnected.”
Rodriguez argues that the victim’s phone, which was in his pocket at the time of his arrest, is indicative of a theft that occurred after the violence. But that completely ignores the evidence of everything else that was taken from the victim as both defendants stood by as he lay on the ground naked and bloodied. And Dunbrack’s testimony certainly did not make the argument that the theft and violence were unconnected. Although she testified that N.R. attempted to sexually assault her, leading to a fight between N.R. and Rodriguez, she claimed she was completely unaware of the theft of N.R.’s phone, passport, wallet, and money.
The Assault and unrelated theft argument loses some of its significance if a second-degree aggravated assault is alleged since that, like robbery, is a NERA offense. It is still a relevant distinction in the case of an armed robbery since that would be a first-degree NERA charge with a 20-year maximum sentence as opposed to a second-degree NERA charge with a 10-year maximum sentence.