ROBBERY IN THE SECOND DEGREE

                                      (N.J.S.A. 2C:15-1)

       The defendant is charged with the crime of robbery. The indictment reads in        pertinent part as follows:

                                       (Read Indictment)

       The part of the statute on which this indictment is based reads as follows:

              A person is guilty of robbery if, in the course of committing a theft, he                (select appropriate):

              (1) knowingly1 inflicts bodily injury or uses force2 upon another;

                                                 or

              (2) threatens another with or purposely puts him in fear of immediate                bodily injury;

                                                 or

              (3) commits or threatens immediately to commit any crime of the first or                second degree.

       In order for you to find the defendant guilty or robbery, the State is required        to prove each of the following elements beyond a reasonable doubt:         1. that the defendant was in the course of committing a theft,        2. that while in the course of committing that theft the defendant (Choose from         the following three):

              a. knowingly inflicted bodily injury or used force upon another.3                b. threatened another with or purposely put another in fear of immediate                bodily injury.                c. committed or threatened immediately to commit the crime of .4

       As I have said, the State must prove, beyond a reasonable doubt, that the        defendant was in the course of committing a theft. In this connection, you are         advised that an act is considered to be "in the course of committing a theft" if         it occurs in an attempt 5 to commit the theft, during the commission of the        theft itself, or in immediate flight after the attempt or commission.6         Theft is defined as the unlawful taking or exercise of unlawful control over        property of another with purpose to deprive (him/her) thereof. 7         I have used the phrase "with purpose." You may hear me use that phrase or the         word "purposely" again. I shall now explain what that means. A person acts        purposely with respect to the nature of (his/her) conduct or a result thereof if         it is a person's conscious object to engage in conduct of that nature or to        cause such a result.        In addition to proving beyond a reasonable doubt that the defendant was in the         course of committing a theft, the State must also prove, beyond a reasonable        doubt, that while in the course of committing that theft (charge the         alternatives that follow, depending on the nature of the case):        1. The defendant knowingly inflicted bodily injury or used force8 upon another.         A person acts knowingly with respect to a result of his conduct if he is aware        that it is practically certain that his conduct will cause such a result. A         person acts knowingly with respect to the nature of his conduct if he is aware        that his conduct is of that nature.        The phrase "bodily injury" means physical pain, illness, or any impairment of         physical condition;9         "Force" means an amount of physical power or strength used against the victim        and not simply against the victim's property.

The force need not entail pain or bodily harm and need not leave any mark. Nevertheless, the force must be greater than that necessary merely to snatch the object from the victim's grasp or the victim's person, and the force must be directed against the victim, not merely the victim's property.10

                                                 or

       2. the defendant threatened another with or purposely put another in fear of        immediate bodily injury.        The phrase "bodily injury" means physical pain, illness or anyimpairment of         physical condition.11 (Although no bodily injury need have resulted, the        prosecution must prove that the defendant either threatened the victim with or         purposely put the victim in fear of such bodily injury);

                                                 or

       3. the defendant committed or threatened immediately to commit (here specify the        first or second degree crime alleged by the State and define to the extent         necessary) while in the course of committing the theft.        Should you find that the State has failed to prove either of these essential         elements of the crime of robbery beyond a reasonable doubt, you must return a        verdict of not guilty of robbery. If you find the State has proved these         essential elements of the crime of robbery, then you must find the defendant        guilty as charged.12

1 In State v. Sewell, 127 N.J. 133 (1992), the Supreme Court held that the state must prove "knowledge" as the requisite mental state for the injury/force element of robbery.

2 See attached statement accompanying Senate Bill No. 885, which amended 2C:15-1 (eff. February 6, 1981).

3 State v. Mirault, 92 N.J. 492, 498-99 (1983), holds that "another" can include a responding police officer or someone else other than the victim of the theft.

4 The statute refers to crimes of the first or second degree. The proofs must indicate a specific crime and the jury must be charged accordingly including a definition of that offense.

5 If attempt is involved, define attempt. See 2C:5-1a.

6 State v. Mirault, 92 N.J. at 500-01.

7 See 2C:20-1 and charge elements of theft appropriate to your case.

8 For theft from the person where the amount of force does not elevate the charge to robbery, see Model Charge for N.J.S.A. 2C:20-3a (theft of movable property).

9 See definition in 2C:11-1a.

10 State v. Sein, 124 N.J. 209, 217-18 (1991).

11 See 2C:11-1a.

12 If the jury could find that from the evidence there was a theft or attempted theft without the additional elements involved in the robbery, or if the jury could find that the theft and attendant flight were completed before the assault took place, the jury should be charged the appropriate lesser included offense.

2C:15-1. Robbery a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

(3) Commits or threatens immediately to commit any crime of the first or second degree.

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.

L.1979, c. 178, s. 28, eff. Sept. 1, 1979. Amended by L.1981, c. 22, s. 1, eff. Feb. 6, 1981.

2C:15-2. Carjacking defined 1. a. Carjacking defined. A person is guilty of carjacking if in the course of committing an unlawful taking of a motor vehicle, as defined in R.S.39:1-1, or in an attempt to commit an unlawful taking of a motor vehicle he:

(1) inflicts bodily injury or uses force upon an occupant or person in possession or control of a motor vehicle;

(2) threatens an occupant or person in control with, or purposely or knowingly puts an occupant or person in control of the motor vehicle in fear of, immediate bodily injury;

(3) commits or threatens immediately to commit any crime of the first or second degree; or

(4) operates or causes said vehicle to be operated with the person who was in possession or control or was an occupant of the motor vehicle at the time of the taking remaining in the vehicle.

An act shall be deemed to be "in the course of committing an unlawful taking of a motor vehicle" if it occurs during an attempt to commit the unlawful taking of a motor vehicle or during an immediate flight after the attempt or commission.

b. Grading. Carjacking is a crime of the first degree and upon conviction thereof a person may, notwithstanding the provisions of paragraph (1) of subsection a. of N.J.S.2C:43-6, be sentenced to an ordinary term of imprisonment between 10 and 30 years. A person convicted of carjacking shall be sentenced to a term of imprisonment and that term of imprisonment shall include the imposition of a minimum term of at least five years during which the defendant shall be ineligible for parole.

L.1993,c.221.

    The judge will read the following Instructions and law to the jury at the end of the trial:                   ROBBERY IN THE SECOND DEGREE                                            (N.J.S.A. 2C:15-1)

       The defendant is charged with the crime of robbery. The indictment reads in pertinent part as follows:

                                           (Read indictment)

       The part of the statute on which this indictment is based reads as follows:

              A person is guilty of robbery if, in the course                of committing a theft, he (select appropriate):

              (1) inflicts bodily injury upon another;

                                                 or

              (2) threatens another with or purposely puts him in fear of immediate bodily injury;

                                                 or

              (3) commits or threatens immediately to commit any crime of the first or second degree.

       In order for you to find the defendant guilty of robbery, the State is required to prove each of the following         elements beyond a reasonable doubt:

              1. that the defendant was in the course of committing a theft,                2. that while in the course of committing that theft the defendant (Choose from the following three):

                    a. inflicted bodily injury upon another.                      b. threatened another with or purposely put another in fear of immediate bodily injury. c.                      committed or threatened immediately to commit the crime of .1

       As I have said, the State must first prove, beyond a reasonable doubt, that the defendant was in the course of         committing a theft. In this connection, you are advised that an act is considered to be "in the course of committing a         theft" if it

occurs in an attempt2 to commit the theft, during the commission of the theft itself, or in immediate flight after the attempt or commission.

       Theft is defined as the unlawful taking, or exercises of unlawful control over property of another with purpose to         deprive (him/her) thereof.3         I have used the phrase "with purpose." You may hear me use that phrase or the word "purposely" again. I shall        now explain what that means. A person acts purposely with respect to the nature of (his/her) conduct or a result         thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result.         In addition to proving beyond a reasonable doubt that the defendant was in the course of committing a theft, the         State must also prove, beyond a reasonable doubt, that while in the

course of committing that theft (charge the alternatives that follow, depending on the nature of the case):

              1. the defendant inflicted bodily injury upon another. The phrase "bodily injury" means physical pain,                illness, or any impairment of physical condition;4

                                                 or

              2. the defendant threatened another with or purposely put him in fear of immediate bodily injury.                The phrase "bodily injury" means physical pain, illness or any impairment of physicalcondition.5                (Although no bodily injury need have resulted, the prosecution must prove that the defendant either                threatened the victim with or purposely put (him/her) in fear of such bodily injury):

                                                 or

       3. the defendant committed or threatened immediately to commit (here specify the first or second degree crime         alleged by the State and define to the extent necessary) while in the course of committing the theft.

       Should you find that the State has failed to prove either of these essential elements of the crime of robbery beyond         a reasonable doubt, you must return a verdict of not guilty of robbery. If you find the State has proved these         essential elements of the crime of robbery then you must find the defendant guilty as charged.6