State v. Osborne S. Maloney (068877)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Osborne S. Maloney (A-64-11) (068877)

Argued November 28, 2012 -- Decided October 16, 2013

ARIEL A. RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a majority of the Court.

In this appeal, the issue is whether the trial court was required to instruct the jury sua sponte on accomplice
liability and whether it was also required to charge the jury on the lesser-included offenses of attempted theft by
receiving stolen property and conspiracy to receive stolen property.

This case stems from the armed robbery of the home of supermarket owner Syoma Shnayder (Sam) and his
wife Rita Shnayder. Igor Chichelnitsky planned the robbery because Sam had turned down his offers to supply
products to Sam’s supermarket stores. Chichelnitsky recruited defendant, Juan Rodriguez, and Nathan Jakubov to
commit the robbery. According to the State, on August 16 or 17, 2005, defendant, Rodriguez, and Jakubov drove in
Jakubov’s Lexus to “scope out” the Shnayder’s home in Monroe Township, at which time defendant took
photographs of the house. On August 19, 2005, at approximately 10 p.m., Jakubov drove defendant and Rodriguez
to the home again. Jakubov stayed in the Lexus while defendant and Rodriguez walked towards the home wearing
black masks. Defendant carried a .38 caliber handgun and a knife, and Rodriguez carried a 9-millimeter handgun.
Rita was not home but arrived during the robbery. At some point during the ordeal, Rita managed to run out of the
house and called 911. Sam was able to get himself loose from zip ties, at which time defendant shot him in the
abdomen and ran out of the house. Rodriguez, who was upstairs, heard the gunshot and came downstairs. He saw
defendant running from the home and he ran too. Outside, Rodriguez saw Jakubov driving away with defendant.
Rodriguez fled on foot with the stolen property: $7000 in cash and two expensive watches.

Monroe Township police officers Richard Livingston and Allan Excel responded to the scene and received
a description of the robbers. Shortly thereafter, they discovered Rodriguez several blocks away from the Shnayder
home. When the officers approached him Rodriguez was sweaty, avoiding eye contact, and stuttering. Rodriguez
identified himself and stated that he was coming from his friend’s house in Monroe. The officers noticed bulges in
Rodriguez’s front pants pocket. Fearing he had a weapon, the officers conducted a pat-down search, which revealed
two cellphones, two watches, $7000 in cash, and a black mask in Rodriguez’s back pocket. Officer Excel testified
that Rodriguez stated that “he knew what went on down the street” and gave a description of the Lexus. The police
arrested Rodriguez and gave him Miranda warnings. Rodriguez confessed that he, Jakubov, and defendant robbed
the Shnayder home and that defendant shot Sam during the incident. At police headquarters, Rodriguez agreed to
make a telephone call to defendant and Jakubov while the police listened. Rodriguez asked defendant and Jakubov
to come back and get him, informing them that he had taken $7000 from the home. Jakubov and defendant told
Rodriguez to “lay low” and promised that they would come and get him. Rodriguez called a second time and spoke
to defendant. After confirming that Rodriguez had $7000 and two expensive watches, defendant agreed to pick him
up at a nearby hotel. Defendant returned to Monroe in a taxi and the police took him into custody at the hotel.

Defendant was charged with attempted murder, conspiracy to commit robbery, burglary, weapons offenses,
and related charges stemming from the robbery. Defendant testified and denied participating either in the planning
or commission of the robbery. He admitted to traveling to Monroe in early August 2005 with Jakubov and
Rodriguez but denied knowing the purpose of the trip. Defendant further testified that he returned to the area of the
robbery in the early morning after the armed robbery and shooting, believing that he would be reimbursed for his
taxicab fare by Rodriguez, and that he would be paid some money after two stolen watches “were swapped.”

Defense counsel requested that the jury be instructed on attempted theft by receiving stolen property as a
lesser-included offense of robbery. The prosecutor objected, arguing such charge lacked a rational basis in the
record. The judge denied defendant’s request. The judge also denied defense counsel’s request that the jury be
instructed on conspiracy to commit theft as a lesser-included offense of robbery. Defendant did not request an
accomplice liability instruction or object to the final jury charge. The jury found defendant guilty of second-degree
conspiracy to commit armed robbery, second-degree conspiracy to commit burglary, two counts of first-degree
armed robbery, second-degree burglary, second-degree possession of a weapon (a handgun) for an unlawful
purpose, and third-degree criminal restraint.

Defendant appealed. The Appellate Division rejected defendant’s argument that his convictions should be
reversed because the judge did not instruct the jury sua sponte on accomplice liability or on two lesser-included
offenses. The Appellate Division affirmed defendant’s convictions but concluded that the convictions for
conspiracy to commit armed robbery and burglary as well as possession of a weapon for an unlawful purpose
merged with the armed robbery conviction, and remanded for the entry of a corrected judgment.

The Supreme Court granted defendant’s petition for certification. 209 N.J. 97 (2012).

HELD: The trial court did not err by failing to sua sponte instruct the jury on accomplice liability and by rejecting
defendant’s request to charge the jury on the asserted lesser-included offenses of attempted theft by receiving stolen
property and conspiracy to receive stolen property.

1. 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.” State v. Whitaker, 200 N.J. 444, 458 (2009) (citing N.J.S.A.
2C:2-2(a)). If the State’s theory is “that a defendant acted as an accomplice, the trial court is obligated to provide
the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by
defense counsel.” State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993). On the other hand, when the
State’s theory of the case only accuses the defendant of being a principal, and a defendant argues that he was not
involved in the crime at all, then 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.” N.J.S.A. 2C:1-8e. If neither party requests a charge on a lesser-included offense, the court
must sua sponte provide an instruction “‘when the facts adduced at trial clearly indicate that a jury could convict on
the lesser while acquitting on the greater offense.’” State v. Thomas, 187 N.J. 119, 132 (2006) (quoting State v.
Jenkins, 178 N.J. 347, 361 (2004)). (pp. 16-22)

2. The trial judge did not commit plain error by failing to sua sponte instruct the jury on accomplice liability. Even
if defendant had requested such a charge, the accomplice liability instruction would not have been warranted
because it was not grounded in a rational basis in the trial evidence. 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 and defendant
suffered no prejudice by the judge’s failure to sua sponte charge the jury on accomplice liability. Further, despite
defendant’s arguments, the evidence could not support a finding that defendant had a lesser intent than that required
to commit robbery. Defendant’s request that the judge instruct the jury on two lesser-included offenses of robbery --
attempted theft by receiving stolen property and conspiracy to receive stolen property -- was properly denied.
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, on the other hand, are
property crimes. Thus, the Appellate Division correctly decided that the trial court did not err by failing to sua
sponte instruct the jury on accomplice liability and by rejecting defendant’s request to charge the jury on the
asserted lesser-included offenses of attempted theft by receiving stolen property and conspiracy to receive stolen
property. (pp. 22-26)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN filed a separate, DISSENTING opinion, stating that the trial judge was required to
charge the jury on attempted theft by receiving stolen property as a related offense and that failing to give the jury
the opportunity of convicting 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 RODRÍGUEZ’s opinion. JUSTICE ALBIN filed a separate,
dissenting opinion.

2
 SUPREME COURT OF NEW JERSEY
A-64 September Term 2011
068877

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSBORNE S. MALONEY,

Defendant-Appellant.

Argued November 28, 2012 – Decided October 16, 2013

On certification to the Superior Court,
Appellate Division.

Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).

Joie D. Piderit, Assistant Prosecutor,
argued the cause for respondent (Bruce J.
Kaplan, Middlesex County Prosecutor,
attorney).

JUDGE RODRÍGUEZ (temporarily assigned) delivered the

opinion of the Court.

In this case, the State alleged that defendant Osborne S.

Maloney was part of a four-person conspiracy to commit a

targeted armed robbery of a businessman at his home. The

State’s theory of the case was that one man was the ringleader,

another the driver of the getaway car, and defendant and the

fourth man were the ones that executed the planned armed

1
robbery, which went awry and resulted in the businessman being

shot in the abdomen by defendant.

The four men were arrested shortly thereafter. One of the

accused reached an agreement with the State and testified

against defendant. At his trial, defendant testified that he

was not part of the conspiracy. He admitted that the day after

the armed robbery and shooting, he took a taxi from New York

City to a hotel in Monroe Township to pick up a co-defendant in

the hopes of obtaining the proceeds from the sale of watches

stolen from the victim’s home. The jury’s verdict was mostly

consistent with the State’s theory.

Defendant contends that his convictions should be reversed

based on the judge’s failure to instruct the jury sua sponte on

accomplice liability, pursuant to N.J.S.A. 2C:2-6 and State v.

Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993). Defendant

also contends that reversal is required for failure to charge

two lesser-included offenses. We affirm the judgment of the

Appellate Division, which upheld the convictions.

I.

Defendant was charged with attempted murder, conspiracy to

commit robbery, burglary, weapons offenses, and related charges

stemming from the robbery of the home of supermarket owner Syoma

Shnayder (Sam) and his wife Rita Shnayder. Igor Chichelnitsky

planned the robbery because Sam had turned down his offers to

2
supply products to Sam’s supermarket stores. Chichelnitsky

recruited defendant, Juan Rodriguez, and Nathan Jakubov to

commit the robbery. Pursuant to an agreement with the State,

Rodriguez pleaded guilty to armed robbery and testified at the

trial of defendant.

The State’s evidence can be summarized as follows. On

August 16 or 17, 2005, defendant, Rodriguez, and Jakubov drove

in Jakubov’s 2003 Lexus to “scope out” the Shnayder’s home in

Monroe Township. Defendant took photographs of the house. On

August 19, 2005, at approximately 10:00 p.m., Jakubov drove

defendant and Rodriguez to the home again. Jakubov stayed in

the Lexus while defendant and Rodriguez walked towards the home

wearing black masks covering their faces. Defendant carried a

.38 caliber handgun and a knife, and Rodriguez carried a 9-

millimeter handgun.

Defendant and Rodriguez went to the backyard of the house.

Sam was “snoozing” in the hot tub. Sam testified that someone

in a black ski mask came up behind him, grabbed his hair, put a

knife to his throat, and threatened to kill him if he screamed.

A second man in a ski mask entered the backyard. Sam’s hands

were tied behind his back with plastic zip ties. In his

testimony, Rodriguez identified defendant as the man who put a

knife to Sam’s throat. Rodriguez also testified that he

demanded to know where money was hidden. Sam directed him to

3
the kitchen, where Rodriguez took $7000 from a table. Rodriguez

brought Sam upstairs to search for additional money.

Rita returned home, noticed defendant, and began screaming

while asking, “Where’s my husband?” Defendant covered her mouth

and held the knife to her head. Sam and Rodriguez returned to

the first floor. Rita continued screaming. Thereafter, Sam

told the robbers he had two expensive watches in the kitchen,

and one of the men retrieved the watches.

Rita managed to free herself, ran to a neighbor’s home, and

called 911. Sam released his arms from the ties. Defendant

then shot Sam in the left side of his abdomen and ran out of the

house. Rodriguez testified that he was upstairs looking for

more items to steal when he heard the gunshot. He came

downstairs and saw defendant running from the home. Rodriguez

began to follow but Sam grabbed him by the leg. Rodriguez

kicked himself free and ran out of the home. Outside, he saw

Jakubov driving away with defendant. Rodriguez fled on foot.

While doing so, he discarded the shirt he was wearing, his

plastic gloves, and a handgun.

Monroe Township police officers Richard Livingston and

Allan Excel responded to the scene and received a description of

the robbers. Shortly thereafter, they discovered Rodriguez

several blocks away from the Shnayder home. When the officers

approached him Rodriguez was sweaty, avoiding eye contact, and

4
stuttering. Rodriguez identified himself and stated that he was

coming from his friend’s house in Monroe. The officers noticed

bulges in Rodriguez’s front pants pocket. Fearing he had a

weapon, the officers conducted a pat-down search, which revealed

two cellphones, two watches, $7000 in cash, and a black mask in

Rodriguez’s back pocket.

Officer Excel testified that Rodriguez stated that “he knew

what went on down the street” and gave a description of the

Lexus. The police arrested Rodriguez and gave him Miranda1

warnings. Rodriguez confessed that he, Jakubov, and defendant

robbed the Shnayder home and that defendant shot Sam during the

incident.

At police headquarters, Rodriguez agreed to make a

telephone call to defendant and Jakubov while the police

listened. Rodriguez asked defendant and Jakubov to come back

and get him, informing them that he had taken $7000 from the

home. Jakubov and defendant told Rodriguez to “lay low” and

promised that they would come and get him. Several minutes

later, Rodriguez was informed by Jakubov’s girlfriend that

Jakubov had been arrested for driving without a license.

Rodriguez spoke to defendant and asked him to pick him up.

Defendant asked how much money Rodriguez had removed from the

1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

5
premises. Rodriguez confirmed that he had $7000 plus two

expensive watches. Defendant agreed to pick up Rodriguez at a

nearby hotel. Defendant returned to Monroe in a taxi and the

police took him into custody at the hotel.

Defendant testified and denied participating either in the

planning or commission of the robbery. Defendant admitted to

traveling to Monroe in early August 2005 with Jakubov and

Rodriguez but denied knowing the purpose of the trip. According

to defendant, Rodriguez took photographs of the Shnayder home.

Defendant also denied that Jakubov and Rodriguez asked him to

return to the area at a later date.

Defendant testified that he returned to the area where the

robbery took place in the early morning after the armed robbery

and shooting. He testified as follows on direct:

[Defense Counsel]: Did you come down to
Monroe Township on August 20th, 3 o’clock in
the morning?

[Defendant]: Yes, ma’am.

Q. And how did you come to wind up coming
down to Monroe Township?

A. All right. Nathan [Jakubov] was
with a girl that I hooked him up with.

Q. What’s that girl’s name?

A. Asia.

Q. Do you know her last name?

6
 A. I don’t recall her last name. I
don’t, ma’am, no. Nathan was with Asia, the
girl I hooked him up with. So, Asia called
me and said Nathan --

[Assistant Prosecutor]: Objection, hearsay.

[Judge]: Sustained.

Q. Did you receive a telephone call that
evening?

A. Yes, ma’am.

Q. And as a result of that telephone call
-- did the telephone call come from Asia?

A. Yes, ma’am.

Q. As a result of that telephone call, did
you do something?

A. Yes, ma’am.

Q. And what was that?

A. I went to, I went -- I reported to
Asia as a result of that telephone call,
ma’am.

Q. And then what happened?

A. Then when I reported to her, she
was telling me what happened with Nathan.

Q. Okay. And this was what time?

A. This is about midnight. Midnight,
a little past midnight, yeah.

Q. And what did you do after that? What
happened after that?

A. I got the property from Asia,
Nathan’s property, like his chain, his
wallet, his phone stuff, like that.

7
Q. Where was Nathan if you know?

A. She had told me that he had got
arrested. He got pulled over.

Q. Okay. And then what happened?

A. Then while I had the phone, Juan
Rodriguez called. I answered the phone. He
told me that --

[Assistant Prosecutor]: Objection, hearsay.

[Judge]: Sustained.

Q. Did Juan Rodriguez ask you to do
anything?

A. Yes, ma’am.

Q. And as a result of Juan Rodriguez
asking you to do something, what did you do?

A. I called the cab, Liberty Cab . .
. and asked them, can I get a cab to Jersey.
He said I have to wait about 30 minutes, 30,
45 minutes, for a cab to take me to Jersey.

Q. Did Juan tell you he had any money on
him?

A. No, no, ma’am.

Q. What did he tell you he had on him?

A. He told me --

[Assistant Prosecutor]: Objection.

A. He told me he had two watches,
ma’am.

[Judge]: Sustained.

Q. Did you have any reason to believe
after speaking with Juan that he had money

8
 to go hire his own cab or limousine from
where he was?

A. No ma’am.

Q. And did you go in the cab?

A. Yes, ma’am.

Q. And at some point, did you arrive in
New Jersey?

A. Yes, ma’am.

Q. And what happened when you arrived in
New Jersey?

A. When I got in front of the hotel,
I called him back and told him I was in
front of the hotel, to come outside, but as
soon as I looked around, there was a lot of
cops around and they pulled me out the car
and leave me on the floor and asked me my
name. I said my name is Osborne Maloney.

Defendant admitted that he thought he would be reimbursed

for his taxicab fare by Rodriguez, and that he would be paid

some money after two stolen watches “were swapped.”

At a conference to discuss the jury charge, defense counsel

requested that the jury be instructed on attempted theft by

receiving stolen property as a lesser-included offense of

robbery. The prosecutor objected, arguing such charge lacked a

rational basis in the record for a jury to find that defendant

received stolen property during the commission of a robbery.

The judge denied defendant’s request. The judge also denied

defense counsel’s request that the jury be instructed on

9
conspiracy to commit theft as a lesser-included offense of

robbery.

Defendant did not request an accomplice liability

instruction or object to the final jury charge.

II.

The jury found defendant guilty of second-degree conspiracy

to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1; second-

degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and 2C:18-

2; two counts of first-degree armed robbery, N.J.S.A. 2C:15-1;

second-degree burglary, N.J.S.A. 2C:18-2; second-degree

possession of a weapon (a handgun) for an unlawful purpose,

N.J.S.A. 2C:39-4a; and third-degree criminal restraint, N.J.S.A.

2C:13-2. In fashioning a sentence, the judge found three of the

aggravating factors set by N.J.S.A. 2C:44-1a: (2) the gravity

and seriousness of harm inflicted on the victim; (3) the risk

that defendant will commit another offense; and (9) the need for

deterring defendant and others from violating the law. The

judge found no mitigating factors, N.J.S.A. 2C:44-1b. The judge

imposed concurrent prison terms aggregating eighteen years

subject to a period of parole ineligibility pursuant to the No

Early Release Act, N.J.S.A. 2C:43-7.2, and a five-year term of

parole supervision upon release.

Defendant appealed. The Appellate Division rejected

defendant’s argument that his convictions should be reversed

10
because the judge did not instruct the jury sua sponte on

accomplice liability. The Appellate Division analogized this

case to State v. Crumb, 307 N.J. Super. 204, 221-22 (App. Div.

1997), certif. denied, 153 N.J. 215 (1998), in which the

appellate panel held that a defendant was not entitled to an

accomplice liability instruction where the State prosecuted him

as the principal and the defendant argued that he did not commit

the crime at all. In this case, the Appellate Division

similarly held that, because defendant testified that he had no

involvement either in the planning or commission of the crime

and the State prosecuted defendant only as a principal, the

accomplice liability instruction was not warranted and not

plainly erroneous. Thus, the Appellate Division concluded there

was no rational basis to provide an accomplice liability

instruction to the jury in this case.

The Appellate Division also rejected defendant’s argument

that the judge erred in failing to instruct the jury on two

lesser-included offenses – “‘attempted theft via a theory of

receiving stolen property as a lesser-included offense of the

robbery’, and ‘[] conspiracy to commit theft . . . as a lesser-

included offense of the charge of conspiracy to commit

robbery.’” The Appellate Division noted that “[i]t is clear

from a plain reading of the statute [N.J.S.A. 2C:20-7a] that

receiving stolen property under the present circumstances is not

11
a lesser-included offense of robbery.” The appellate panel

reasoned that “[r]eceiving stolen property requires proof that

the defendant knew the property was stolen, and robbery requires

the use or threat of force during the commission of a theft.”

The Appellate Division also rejected defendant’s argument

that the judge erred in not instructing the jury that receiving

stolen property was a related offense. It determined “that the

two offenses do not share a common factual nucleus in that the

same conduct does not establish the crimes of robbery and

receipt of stolen property.” The panel reasoned that “the

robbery was completed before the alleged ‘attempted theft’ and

‘conspiracy to commit theft’ that defendant had requested be

charged to the jury.” Accordingly, the panel determined

defendant’s requested charges were not related offenses and the

judge had no duty to charge them.

The Appellate Division affirmed defendant’s convictions but

ordered that the convictions for conspiracy to commit armed

robbery and burglary as well as possession of a weapon for an

unlawful purpose merged with the armed robbery conviction, and

remanded for the entry of a corrected judgment. We granted

defendant’s petition for certification. 209 N.J. 97 (2012).

III.

Defendant contends that the Appellate Division erred by

affirming the judge’s failure to charge the jury on accomplice

12
liability. First, defendant argues that the absence of the

charge left the jury unable to consider lesser-included offenses

pursuant to Bielkiewicz, supra, 267 N.J. Super. at 520.

Defendant also argues that the jury had no guidance to

understand the accomplice liability issues if it did not find

defendant liable as a principal. Defendant points to

inconsistencies in the jury’s verdict such as convicting

defendant only of conspiracy to commit burglary and robbery

rather than conspiracy to commit armed robbery, despite

convicting him of armed robbery and armed burglary as an

indication that the jury did not believe he was culpable as a

principal. He argues that the Appellate Division erred in

discounting the possibility that the jury could reject both

parties’ theories and instead reach a “middle-ground” conclusion

that he participated as an accomplice.

Defendant further argues that the judge had a duty sua

sponte to instruct the jury on any lesser-included offenses. He

argues that the Appellate Division erred in concluding that the

charges of attempted theft by receiving stolen property and

conspiracy to commit theft by receiving stolen property were not

lesser-included offenses of robbery.

Defendant argues that the Appellate Division implicitly

relied on State v. Smith, 136 N.J. 245 (1994), in reaching the

erroneous conclusion. Defendant argues that the instant case is

13
more analogous to State v. Freeman, 324 N.J. Super. 463 (App.

Div. 1999), in which the Appellate Division required theft by

deception to be charged as a lesser-included offense of robbery

“where the theft pertained . . . to a portion of the same

property alleged to be the proceeds of the robbery.” Defendant

argues that the property at issue in this case -- two watches --

constituted proceeds of the robbery and that the judge’s failure

to instruct on lesser-included offenses left the jury with stark

choices: either conviction of robbery or acquittal. Finally,

defendant argues that the Appellate Division misinterpreted

prior cases in determining that receiving stolen goods from a

robbery is not a crime related to the robbery of those goods.

The State argues that, under the plain error standard under

Rule 2:10-2, defendant’s convictions do not warrant reversal.

The State notes that defendant neither requested an instruction

on accomplice liability at trial nor objected to the final jury

charge. The State argues that the evidence did not provide a

rational basis to charge defendant with accomplice liability.

The State’s theory was that defendant conspired with his co-

defendants to commit an armed robbery and acted as a principal.

The defense theory was that defendant did not participate in or

even know of the armed robbery and home invasion.

The State also argues that defendant’s reliance on

Bielkiewicz, is misplaced, because an instruction on accomplice

14
liability is not needed when neither party’s theory of the case

suggests that defendant had a different mental state than that

of a principal. According to the State, defendant did not argue

that he had a lesser mental state than his co-defendants.

Rather, he argued that he had no culpable mental state. The

State also maintains that instructing the jury on accomplice

liability would have prejudiced defendant because it would have

provided the jury with an additional basis on which to convict

defendant.

The State also contends that the trial judge correctly

determined that receiving stolen property cannot be a lesser-

included offense of robbery because the former is a crime

against property and the latter is a crime against a person.

Additionally, the State argues that defendant failed to show

that the trial court should have charged attempted receipt of

stolen property as a related offense because that charge does

not “share a common factual nucleus” with robbery, the actual

offense charged. See State v. Thomas, 187 N.J. 119, 130 (2006).

Defendant testified that his participation was limited and did

not commence until after the armed robbery and home invasion

were completed. At the time he decided to travel to Monroe,

Rodriguez and Jakubov were in police custody, he simply drove to

the locale of the crime to give Jakubov a ride home and hoped to

15
get reimbursed for the fare by getting part of the robbery

proceeds.

IV.

When a defendant fails to raise an issue at trial,

appellate review is governed by the plain error standard. R.

2:10-2. “Any error or omission shall be disregarded by the

appellate court unless it is of such a nature as to have been

clearly capable of producing an unjust result.” Ibid.; see

State v. Galicia, 210 N.J. 364, 386 (2012); State v. Macon, 57

N.J. 325, 337 (1971). If a defendant fails to object to a trial

court’s instructions, the failure to challenge the jury charge

is considered a waiver to object to the instruction on appeal.

R. 1:7-2; State v. Torres, 183 N.J. 554, 564 (2005).

In State v. Green, this Court held that “[a]ppropriate and

proper charges to a jury are essential for a fair trial.” 86

N.J. 281, 287 (1981). An erroneous jury charge “when the

subject matter is fundamental and essential or is substantially

material” is almost always considered prejudicial. Id. at 291.

Such errors are “poor candidates for rehabilitation under the

harmless error philosophy.” State v. Simon, 79 N.J. 191, 206

(1979). “[A] presumption of reversible error arises” that can

only be excused if the error is determined to be “‘harmless

beyond a reasonable doubt.’” State v. Collier, 90 N.J. 117, 123

16
(1982) (quoting Chapman v. California., 386 U.S. 18, 24, 87 S.

Ct. 824, 828, 17 L. Ed. 2d 705, 710 (1967)).

N.J.S.A. 2C:2-6 governs accomplice liability, providing in
pertinent part:

a. A person is guilty of an offense if it is
committed by his own conduct or by the
conduct of another person for which he is
legally accountable, or both.

b. A person is legally accountable for the
conduct of another person when . . .

(3) He is an accomplice of such other
person in the commission of an offense;
. . .

c. A person is an accomplice of another
person in the commission of an offense if:

(1) With the purpose of promoting or
facilitating the commission of the offense;
he

(a) Solicits such other person to
commit it;

(b) Aids or agrees or attempts to aid
such other person in planning or
committing it . . . .

[N.J.S.A. 2C:2-6.]

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.” State v.

Whitaker, 200 N.J. 444, 458 (2009) (citing N.J.S.A. 2C:2-2(a)).

“To be found guilty as an accomplice, a defendant must not only

share the same intent as the principal who commits the crime,

17
but also must ‘at least indirectly participate[] in the

commission of the criminal act.’” Id. at 459 (quoting

Bielkiewicz, supra, 267 N.J. Super. at 528).

If the State’s theory is “that a defendant acted as an

accomplice, the trial court is obligated to provide the jury

with accurate and understandable jury instructions regarding

accomplice liability even without a request by defense counsel.”

Bielkiewicz, supra, 267 N.J. Super. at 527. Furthermore, “when

an alleged accomplice is charged with a different degree offense

than the principal or lesser[-]included offenses are submitted

to the jury, the court has an obligation to ‘carefully impart[]

to the jury the distinctions between the specific intent

required for the grades of the offense.’” Id. at 528 (quoting

State v. Weeks, 107 N.J. 396, 410 (1987)). In Bielkiewicz, two

co-defendants were found guilty of murder after a victim was

killed by one gunshot wound to the chest. Id. at 525-26.

Because witnesses could not definitively identify which

defendant fired the fatal shot, the State’s theory was the one

defendant was guilty of murder as the principal and the other

was guilty as an accomplice. Id. at 526. The Appellate

Division determined that, based on the State’s theory of the

case, the judge was obligated to “provide the jury with accurate

and understandable instructions regarding accomplice liability

for murder.” Id. at 527. The Appellate Division reversed

18
defendants’ convictions because the judge failed to charge on

accomplice liability. Id. at 536.

When the State’s theory of the case only accuses the

defendant of being a principal, and a defendant argues that he

was not involved in the crime at all, then the judge is not

obligated to instruct on accomplice liability. See, e.g.,

Crumb, supra, 307 N.J. Super. at 221-22; State v. Oliver, 316

N.J. Super. 592, 597 (App. Div. 1998), aff’d, 162 N.J. 580

(2000); State v. Rue, 296 N.J. Super. 108, 115-16 (App. Div.

1996), certif. denied, 148 N.J. 463 (1997).

N.J.S.A. 2C:1-8d governs lesser-included offenses. The

statute provides:

A defendant may be convicted of an offense
included in an offense charged whether or
not the included offense is an indictable
offense. An offense is so included when:

(1) It is established by proof of the same
or less than all the facts required to
establish the commission of the offense
charged; or

(2) It consists of an attempt or conspiracy
to commit the offense charged or to commit
an offense otherwise included therein; or

(3) It differs from the offense charged only
in the respect that a less serious injury or
risk of injury to the same person, property
or public interest or a lesser kind of
culpability suffices to establish its
commission.

[N.J.S.A. 2C:1-8d.]

19
N.J.S.A. 2C:1-8e provides that 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.”

This Court has affirmed the statutory requirements, finding that

“whether an included offense charge is appropriate requires (1)

that the requested charge satisfy the definition of an included

offense set forth in N.J.S.A. 2C:1-8d, and (2) that there be a

rational basis in the evidence to support a charge on that

included offense.” Thomas, supra, 187 N.J. at 131.

In Thomas, supra, this Court also addressed whether a judge

sua sponte must charge the jury on a related offense not

requested by either party. Id. at 133. This Court first

distinguished between included offenses and related offenses,

explaining that “[w]hether an offense is an included offense of

another charge requires a comparison of the statutory elements

of each charge.” Id. at 129. If the State requests an

instruction on a lesser-included offense, it may be given only

if the offense satisfies N.J.S.A. 2C:1-8d. Id. at 131. If the

defendant makes such a request, the court must focus on whether

there is a rational basis in the evidence to support such a

charge. Id. at 131-32. If neither party requests a charge on a

lesser-included offense, the court must sua sponte provide an

instruction “‘when the facts adduced at trial clearly indicate

that a jury could convict on the lesser while acquitting on the

20
greater offense.’” Id. at 132 (quoting State v. Jenkins, 178

N.J. 347, 361 (2004)).

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.” Ibid.

This Court held that “due to constitutional grand jury and

notice considerations, 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.” Id. at

123. A court may instruct on a related offense when “the

defendant requests or consents to the related offense charge,

and there is a rational basis in the evidence to sustain the

related offense.” Id. at 133. This Court emphasized that a

trial court has no obligation to “‘scour the statutes to

determine if there are some uncharged offenses of which the

defendant may be guilty.’” Ibid. (quoting State v. Brent, 137

N.J. 107, 118 (1994)).

Robbery has been defined as a theft during which a

defendant: “(1) [i]nflicts bodily injury or uses force upon

another; or (2) [t]hreatens another with or purposely puts him

in fear of immediate bodily injury; or (3) [c]ommits or

threatens immediately to commit any crime of the first or second

degree.” N.J.S.A. 2C:15-1a. On the other hand, one commits the

offense of theft by receiving stolen property “if he knowingly

21
receives or brings into this State movable property of another

knowing that it has been stolen, or believing that it is

probably stolen. . . . ‘Receiving’ means acquiring possession,

control or title . . . of the property.” N.J.S.A. 2C:20-7a.

In examining whether a theft charge should be given in a

robbery case, the Appellate Division in Freeman, noted that,

“[i]n determining whether a theft charge of lesser degree, even

if not a lesser-included offense, should be charged, the Court

requires a careful analysis of not only the factual underpinning

of the lesser charge but the harm to be protected against.” 324

N.J. Super. at 470 (emphasis added).

V.

We hold that the judge did not commit plain error 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 in a rational basis in the trial

evidence.

First, we note that defendant’s reliance on inconsistencies

in the jury’s verdict to bolster his argument that the jury

might have convicted him as an accomplice rather than a

principal is unpersuasive because the verdicts are returned long

after the jury has been instructed. Moreover, “[o]ur system of

justice has long accepted inconsistent verdicts as beyond the

22
purview of correction by our court[].” State v. Kelly, 201 N.J.

471, 487 (2010).

Moreover, defendant was charged in the indictment as a

principal in the robbery and attempted murder. The State

presented proofs consistent with the theory that Rodriguez and

defendant were the only conspirators who entered the home and

interacted with Sam and his wife. Rodriguez testified that

defendant shot Sam. In addition, defendant’s DNA was recovered

from items found in Jakubov’s Lexus, which was driven to and

from the scene of the crime, long before the time he admitted

that he returned to Monroe Township in a taxi.

Defendant, on the other hand, testified that he did not go

to the victims’ home the night of the robbery and shooting.

Rather, he admitted that his only involvement in this case arose

when he answered a call from Rodriguez made to Jakubov’s

telephone, during which Rodriguez asked defendant to pick him up

from a hotel in New Jersey. Defendant went to the hotel

expecting to receive the proceeds of some of the items stolen

during the armed robbery.

We conclude that 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. Therefore, defendant

suffered no prejudice by the judge’s failure to sua sponte

charge the jury on accomplice liability. See, e.g., Crumb,

23
supra, 307 N.J. Super. at 221-22; see also Oliver, supra, 316

N.J. Super. at 597; Rue, supra, 296 N.J. Super. at 115-16.

Further, despite defendant’s arguments, the evidence could

not support a finding that defendant had a lesser intent than

that required to commit robbery. See Crumb, supra, 307 N.J.

Super. at 221-22. The jury had two options. It could credit

Rodriguez’s testimony that defendant was equally involved in

planning and committing the robbery, or it could credit

defendant’s contrary testimony. The evidence could not support

a finding that defendant was guilty as an accomplice in the

armed robbery, shooting or burglary.

We also conclude that defendant’s request that the judge

instruct the jury on two lesser-included offenses of robbery --

attempted theft by receiving stolen property and conspiracy to

receive stolen property -- was properly denied. The statutory

elements of those offenses, set forth above, do not overlap.

Compare N.J.S.A. 2C:15-1a, with N.J.S.A. 2C:20-7a. We agree

with the trial court and the Appellate Division’s reasoning that

robbery is a crime against a person, which focuses on the use of

force or threatened use of force against the victim. See

N.J.S.A. 2C:15-1a. Attempted theft by receipt of stolen

property and conspiracy to receive stolen property, on the other

hand, are property crimes. See N.J.S.A. 2C:20-7a.

24
 Beyond the lack of shared statutory elements, the record

does not provide a rational basis for charging attempted theft

by receipt of stolen property or conspiracy to receive stolen

property as a lesser-included offense of robbery. See Thomas,

supra, 187 N.J. at 131; see also Smith, supra, 136 N.J. at 250

(concluding that theft of services is not a lesser-included

offense of armed robbery because they have different “operative

ingredient[s] -- deception in the one case, the threat of

immediate bodily injury in the other”). As discussed

previously, defendant testified that he had no involvement

whatsoever with the conspiracy, burglary, armed robbery or

shooting of the victim. That factual scenario could not support

a finding that defendant’s requested attempt and conspiracy jury

charges were lesser-included offenses.

Thus, our review of the record leads to the conclusion that

the receipt of stolen property offenses do not share a common

factual nucleus with the robbery charge in this case. See

Thomas, supra, 187 N.J. at 130 (citing N.J.S.A. 2C:1-8a). The

robbery took place at the Shnayder’s home hours before Rodriguez

contacted defendant to request a ride home. Defendant adamantly

denied being present at the robbery and instead testified that

he only went to the hotel in the early morning hours after the

robbery to pick up watches that were stolen from the Shnayder’s

home.

25
 The issue of related offenses was not raised by defendant

in the Appellate Division. Thus, we merely note that the

watches alone are not enough to establish a common factual

nucleus between the robbery charge and attempted theft by

receiving stolen property.

By way of summary, we hold that the Appellate Division

correctly decided that the trial court did not err by failing to

sua sponte instruct the jury on accomplice liability and by

rejecting defendant’s request to charge the jury on the asserted

lesser-included offenses of attempted theft by receiving stolen

property and conspiracy to receive stolen property.

VI.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, HOENS, and
PATTERSON; and JUDGE CUFF (temporarily assigned) join in JUDGE
RODRIGUEZ’s (temporarily assigned) opinion. JUSTICE ALBIN filed
a separate, dissenting opinion.

26
 SUPREME COURT OF NEW JERSEY
A-64 September Term 2011
068877

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSBORNE S. MALONEY,

Defendant-Appellant.

JUSTICE ALBIN, dissenting.

Defendant Osborne Maloney was indicted for a number of

offenses relating to a home invasion, including second-degree

conspiracy to commit burglary (N.J.S.A. 2C:18-2 and N.J.S.A.

2C:5-2), second-degree aggravated assault (N.J.S.A. 2C:12-

1(b)(1)), first-degree attempted murder (N.J.S.A. 2C:11-3(a)(1)

and N.J.S.A. 2C:5-1), and first-degree armed robbery (N.J.S.A.

2C:15-1). Codefendant Juan Rodriguez implicated Maloney in the

robbery and shooting of the homeowner. Maloney, however, denied

committing those crimes and testified that the only crime he

committed was agreeing to receive stolen property from

Rodriguez. Maloney requested that the trial judge instruct the

jury on attempted theft by receiving stolen property. Although

Maloney’s attorney wrongly characterized attempted theft by

receiving stolen property as a lesser-included offense of

robbery, receiving stolen property clearly was a related offense

1
to robbery. Nevertheless, the trial judge refused to charge the

jury on attempted theft by receiving stolen property -- the

offense Maloney admitted committing.

In my view, the trial judge erred in not giving the charge

to the related offense of receiving stolen property. That is

because the jury was left with rendering an all-or-nothing

outcome -- either convict Maloney of the offenses related to the

home invasion or acquit him despite his admission to committing

the crime of attempted receipt of stolen property.

Consequently, if the jury believed Maloney, it was left with the

bleak option of completely acquitting him even though he

admitted to committing the crime of attempted theft. By the

standards of our jurisprudence, failing to give the jury the

opportunity of convicting Maloney of the offense he said he

committed had the capacity of causing an unjust result. I

therefore respectfully dissent.

I.

A trial judge is required to charge the jury with offenses

related to those in the indictment, provided that the defendant

requests the charge and the charge is factually supported by the

record. N.J.S.A. 2C:1-8(e); State v. Sloane, 111 N.J. 293, 299

(1988) (citing State v. Crisantos, 102 N.J. 265, 278 (1986)).

The purpose of this rule is to avoid presenting the jury with an

2
“all-or-nothing” choice, a choice between convicting a defendant

of an offense greater than the one he committed and not

convicting him at all despite his guilt of a lesser offense.

See State v. Garron, 177 N.J. 147, 180 (2003) (“No defendant

should be convicted of a greater crime or acquitted merely

because the jury was precluded from considering a lesser offense

that is clearly indicated in the record.”), cert. denied, 540

U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). We have

expressed concern that a jury faced with that stark alternative

may be more likely to err on the side of convicting rather than

acquitting. See Keeble v. United States, 412 U.S. 205, 212-13,

93 S. Ct. 1993, 1997-98, 36 L. Ed. 2d 844, 850 (1973) (“Where

one of the elements of the offense charged remains in doubt, but

the defendant is plainly guilty of some offense, the jury is

likely to resolve its doubts in favor of conviction.”), quoted

in Sloane, supra, 111 N.J. at 299.

In determining whether an uncharged offense is related to

an offense charged in an indictment, we do not compare the

statutory elements between the two, as we would if considering a

lesser-included offense. State v. Thomas, 187 N.J. 119, 129-30

(2006). Instead, we focus on “whether the offense charged and

the related offense share a common factual nucleus.” Id. at

130. Our jurisprudence does not provide a neat definition of

what constitutes a “common factual nucleus” shared by a charged

3
offense and an uncharged related offense. However, in this

case, it would be fair to say that the stolen property from a

robbery that is also the factual predicate for receiving stolen

property is the “common factual nucleus” shared by both crimes.

Robbery is nothing more than an aggravated theft. See

N.J.S.A. 2C:15-1(a). A theft occurs when a person “unlawfully

takes, or exercises unlawful control over, movable property of

another with purpose to deprive him thereof.” N.J.S.A. 2C:20-

3(a). Receiving stolen property occurs when a person “knowingly

receives . . . movable property of another knowing that it has

been stolen, or believing that it is probably stolen.” N.J.S.A.

2C:20-7. The stolen property is the common nucleus between the

two offenses. That prosecutors routinely charge defendants

alternatively with theft and/or receiving stolen property is a

recognition of the close tie between the two offenses. Thus, in

a prosecution with alternative theories, a jury presented with

facts establishing that a defendant is knowingly in possession

of stolen property does not have to acquit if the State cannot

prove theft beyond a reasonable doubt. The same logic applies

here, but to the advantage of defendant.

II.

Defendant was charged with robbery and requested that the

jury be given the option of convicting him of the lesser,

4
related offense of attempted receipt of stolen property. The

request was defendant’s consent to forgo any objection he could

have raised to submission to the jury of an offense not

contained in the indictment. See Thomas, supra, 187 N.J. at

132-33. That defendant’s lawyer inartfully requested the charge

by characterizing the receiving charge as a lesser-included

offense rather than a related offense should not make a

difference. Certainly, formalism should not prevail over

substance, particularly when the requested charge is supported

by the record.

Here, the jury was given the all-or-nothing alternative

that our jurisprudence cautions against. Defendant’s request

for the related-offense charge and the trial court’s failure to

give the charge caused presumptive prejudice. State v. Nelson,

173 N.J. 417, 446 (2002) (“‘[S]o critical is the need for

accuracy that erroneous instructions on material points are

presumed to be reversible error.’”) (quoting State v. Martin,

119 N.J. 2, 15 (1990)). In short, because the trial judge’s

error had the capacity to cause an unjust result, defendant

should be granted a new trial. See R. 2:10-2. I therefore

cannot agree with the majority’s affirmance of defendant’s

conviction. For this reason, I respectfully dissent.

5
 SUPREME COURT OF NEW JERSEY

NO. A-64 SEPTEMBER TERM 2011

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSBORNE S. MALONEY,

Defendant-Appellant.

DECIDED October 16, 2013
Chief Justice Rabner PRESIDING
OPINION BY Judge Rodriguez
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Albin

CHECKLIST AFFIRM REVERSE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE HOENS X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6 1

1