State v. Hakim Y. Spencer, unpublished opinion, App. Div. Docket No. A-3374-07T2 (June 9, 2010) – Convictions for robbery and weapons possession reversed.
“We reverse the conviction on the case tried to a jury because of the judge’s failure to properly charge attempted theft…. Because defendant did not actually succeed in stealing any money, the first question the jury had to resolve to find defendant guilty of robbery was whether he attempted to commit a theft. Of course, a jury could infer such an attempt from defendant’s conduct and his demand for money from the manager. To make that inference, however, the jury would have to consider and apply the relevant elements of the offense of attempt…. In State v. Gonzalez, 318 N.J. Super. 527 (App. Div. 1999), abrogated on other grounds, State v. Hill, 199 N.J. 545, 566 (2009), the court was, as we are now, confronted with a plain error argument based on the trial court’s failure to define attempt in accordance with the statute in a case in which the State had to prove robbery and there was no theft…. In the instant case, as in Gonzalez, the primary defense was nonparticipation. More significantly, the opinion in Gonzalez did not turn on there being a factual question as to whether or when the perpetrator became armed; rather, it merely mentioned that during the attack a weapon was offered to the perpetrator. The point of Gonzalez is that plain error occurs when the State must prove attempt and the judge fails to charge the requisite elements.”