State v. Maloney, A-64 September Term 2011; Supreme Court; opinion by Rodriguez, P.J.A.D., temporarily assigned; dissent by Albin, J.; decided October 16, 2013. On certification to the Appellate Division. [Sat below: Judges Fuentes and Gilroy in the Appellate Division; Judge Nieves in the Law Division.] DDS No. 14-1-1654 [34 pp.]

Defendant Osborne Maloney was charged with attempted murder and related charges stemming from the robbery of the home of Syoma (Sam) and Rita Shnayder.

Pursuant to a plea agreement, Juan Rodriguez testified at defendant’s trial that on the night of the robbery, Nathan Jakubov drove him and defendant to the home. He and defendant entered the house where they restrained Sam, who later managed to free himself and was shot in the abdomen by defendant, who then fled. Rodriguez exited the house to see Jakubov driving away with defendant and he fled on foot with $7,000 in cash and two expensive watches.

The police stopped Rodriguez several blocks away. A pat-down search revealed the cash and watches. After he was arrested and given his Miranda warnings, Rodriguez agreed to call defendant. Advised that Rodriguez had the cash and watches, defendant agreed to pick him up. He was arrested when he returned for Rodriguez.

At trial, defendant testified that he was not part of the conspiracy but admitted that the day after the robbery and shooting, he went to Monroe Township to pick up Rodriguez in the hopes of obtaining the proceeds from the sale of the stolen watches.

Defense counsel requested an instruction on attempted theft by receiving stolen property and conspiracy to commit theft, as lesser-included offenses of robbery. The judge denied the request. Defendant was found guilty of conspiracy to commit armed robbery, conspiracy to commit burglary, armed robbery, burglary, possession of a weapon (a handgun) for an unlawful purpose, and criminal restraint. The Appellate Division affirmed, but ordered that the convictions for conspiracy to commit armed robbery, burglary, and possession of a weapon for an unlawful purpose be merged with the armed-robbery conviction, and remanded for the entry of a corrected judgment.

On appeal, defendant contends that the Appellate Division erred by affirming the judge’s failure to sua sponte instruct the jury on accomplice liability and his failure to charge any lesser-included offenses.

Held: The judge did not err by failing to sua sponte instruct the jury on accomplice liability. Further, even if defendant had requested such a charge, the accomplice liability instruction would not have been warranted because it was not grounded on a rational basis in the evidence. Defendant’s request for an instruction on attempted theft by receiving stolen property and conspiracy to receive stolen property as lesser-included offenses of robbery was properly denied as those offenses do not share a common factual nucleus with the robbery charge.

The court says whether a defendant is being prosecuted as a principal or an accomplice, the state must prove that he possessed the mental state necessary to commit the offense. If the state’s theory is that a defendant acted as an accomplice, the trial court must provide accurate and understandable instructions regarding accomplice liability even without a request by defense counsel. When the state only accuses the defendant of being a principal, and a defendant argues that he was not involved in the crime at all, the judge is not obligated to instruct on accomplice liability.

A court cannot charge the jury on a lesser-included offense unless there is a rational basis for a verdict convicting the defendant of the included offense. If neither party requests a charge on a lesser-included offense, the court must sua sponte provide an instruction when the facts clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.

In contrast, related offenses are those that share a common factual ground, but not a commonality in statutory elements, with the crimes charged in the indictment. Trial courts are under no obligation to give, sua sponte, a related offense instruction that is not requested by either the prosecution or the defense.

As to whether the court erred in not sua sponte charging accomplice liability, the court notes that defendant was charged in the indictment as a principal. The state presented proofs consistent with that theory. Defendant testified that he did not go to the victims’ home that night and admitted only that he answered Rodriguez’s call and went to the hotel expecting to receive the proceeds of some of the items stolen during the robbery. None of the evidence presented by the state could support a jury finding that defendant was liable as an accomplice rather than as a principal. Thus, defendant suffered no prejudice by the judge’s failure to sua sponte charge the jury on accomplice liability.

Further, the evidence could not support a finding that defendant had a lesser intent than that required to commit robbery.

The court also concludes that defendant’s request that the judge instruct the jury on attempted theft by receiving stolen property and conspiracy to receive stolen property as lesser-included offenses of robbery was properly denied. The statutory elements of those offenses do not overlap. Robbery is a crime against a person, which focuses on the use of force or threatened use of force against the victim. Attempted theft by receipt of stolen property and conspiracy to receive stolen property are property crimes.

Further, the record does not provide a rational basis for charging those offenses as lesser-included offenses of robbery. Defendant testified that he had no involvement with the conspiracy, burglary, armed robbery or shooting. That factual scenario could not support a finding that his requested attempt and conspiracy jury charges were lesser-included offenses. The receipt of stolen property offenses do not share a common factual nucleus with the robbery charge.

As to the issue of related offenses, which defendant did not raise in the Appellate Division, the court says that the watches alone are not enough to establish a common factual nucleus between the robbery charge and attempted theft by receiving stolen property.

Justice Albin in dissent says the trial judge erred in not charging the jury on attempted theft by receiving stolen property as a related offense because failing to give the jury the opportunity to convict defendant of the offense he said he committed had the capacity of causing an unjust result.

Chief Justice Rabner, Justices LaVecchia, Hoens and Patterson and Judge Cuff, temporarily assigned, join in Judge Rodriquez‘s opinion. Justice Albin dissents.

For appellant — Stephen W. Kirsch, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender). For respondent — Joie D. Piderit, Assistant Prosecutor (Bruce J. Kaplan, Middlesex County Prosecutor).