State v. Cassady, A-94 September Term 2007; Supreme Court; opinion by Rivera-Soto, J.; dissent by Long, J.; decided March 11, 2009. On certification to the Appellate Division, 396 N.J. Super. 392 (App. Div. 2007). [Sat below: Judges Coburn, Fuentes and Grall in the Appellate Division; Judge Donio in the Law Division.] DDS No. 14-1-xxxx [37 pp.]

On Feb. 2, 2004, defendant took a cab to a bank in Atlantic City, approached a teller’s window and demanded that the teller “hurry up” and give him money. Defendant then jumped over the seven-foot bullet-proof glass partition and dropped onto the teller’s counter top. The teller ran, locking herself into an adjacent room. She later explained that she “was so scared I thought he would kill me.” Defendant removed $2,410 from the drawer, jumped back over the partition, left the bank and instructed the cab driver to take him to an automobile dealership. There, in the course of trying to steal a car, he assaulted a car salesman and was arrested.

A grand jury returned an indictment charging defendant with two counts of second-degree robbery.

At trial, defendant requested that the court charge the jury on theft as a lesser-included offense of robbery on the bank-teller robbery count, arguing the statute requires that in committing a robbery, the defendant must put another in fear of immediate bodily injury. Defendant asserted there was no immediate harm or threatened or implied harm to the teller. The trial court rejected the request, noting the common understanding that people who go into a bank to take money are prepared to hurt people. The trial court highlighted the teller’s testimony that she was scared for her life. It further reasoned: “And to say that under those facts and circumstances that she wasn’t threatened or purposely put in fear of immediate bodily injury when a six foot five person scales a seven and a-half foot glass wall to go over into the money drawer is, is absolutely ludicrous.” The jury found defendant guilty of both robberies. Defendant was sentenced to two consecutive 10-year terms of imprisonment, subject to the provisions of the No Early Release Act.

The Appellate Division, in a split decision, reversed the conviction for the robbery of the bank teller. Although concluding the evidence was adequate to support the jury verdict, the panel found that the denial of the request for an instruction on the lesser-included crime of theft was error because there was a rational basis for acquittal of robbery based on “the absence of the requisite purpose to put the teller in fear of immediate bodily injury.” The panel also remanded defendant’s sentence on the car-salesman robbery conviction, finding insufficient support in the record for the finding of an aggravating factor and the rejection of defendant’s mitigating factors. Judge Fuentes dissented on the reversal of the robbery of the bank teller, noting that to succeed with the crime, defendant was required to overcome the glass partition and to chase away the teller. Judge Fuentes found defendant’s conduct to be unambiguously threatening.

The state filed an appeal as of right based on the issue presented in Judge Fuentes’s dissent. The Supreme Court also granted the state’s petition for certification for review of the remand of defendant’s sentence.

Held: The trial court properly denied defendant’s request for a jury instruction concerning the lesser-included offense of theft on the bank-teller robbery count because, in the circumstances presented, there was no rational basis for a theft charge. In addition, there was no reversible error in the trial court’s consideration and weighing of aggravating and mitigating factors, thus, the Appellate Division erred when it remanded defendant’s sentence on the car-salesman robbery charge.

When a defendant requests a lesser-included offense charge, the question is whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict defendant of the lesser. Here, after listening to the testimony, assessing the credibility of witnesses, and viewing the videotape of the robbery, the trial court rejected defendant’s request for a theft charge, reasoning that to state that the facts supported anything other than a robbery conviction “is absolutely ludicrous.”

On independent review of the record, the Court agreed, finding the facts were clear and unequivocal: defendant entered a bank, spoke menacingly to a teller and demanded money; defendant vaulted a bullet-proof glass partition, landing on the inside portion where the teller stood; and the teller, fearing for her life, fled. The observation of the dissenting judge in the Appellate Division speaks volumes: “This was a bank robbery: plain and simple. In my view, no rational jury could come to any other conclusion.” The Court rejects as unfounded the Appellate Division’s conclusion that there was a rational basis for acquitting on the bank-teller robbery.

As to the sentencing appeal, the Court found the sentencing court properly weighed and considered the relevant aggravating and mitigating factors. In addressing the imposition of consecutive sentences, the trial court noted that the two crimes were predominantly independent of each other; each involved separate acts of violence or threatened violence against separate victims; and the crimes were committed at different times. The Court found the sentencing court’s exercise of discretion does not shock the judicial conscience and must be sustained.

The judgment of the Appellate Division is affirmed in part and reversed in part. Defendant’s convictions and sentences are reinstated.

Justice Long filed a separate, dissenting opinion, in which Justices Albin and Wallace join, expressing the view that the trial court was required to include a theft charge in the jury instruction because there is evidence in the record that casts doubt on whether defendant purposely put the bank teller in fear of immediate bodily injury in the course of stealing the money.

Chief Justice Rabner and Justices LaVecchia and Hoens join in Justice Rivera-Soto ‘s opinion. Justice Long filed a separate, dissenting opinion, in which Justices Albin and Wallace join.

— By Debra McLoughlin

For appellant — Tracey L. O’Brien, Assistant Prosecutor (Theodore F.L. Housel, Atlantic County Prosecutor). For respondent — John W. Douard, Assistant Deputy Public Defender (Yvonne Smith Segars, Public Defender). For amicus curiae Attorney General of New Jersey — Johanna Barba Jones, Deputy Attorney General (Anne Milgram, Attorney General).