STATE OF NEW JERSEY v. CHRISTOPHER DEKOWSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3056-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER DEKOWSKI,

Defendant-Appellant.

_____________________________

Argued May 15, 2012 Decided May 25, 2012

Before Judges Payne and Reisner.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-01-0071.

Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, on the brief).

Meghan V. Tomlinson, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Tomlinson, of counsel and on the brief).

PER CURIAM

Defendant Christopher Dekowski appeals from his conviction for first-degree armed robbery, N.J.S.A. 2C:15-1b, and from the sentence of thirteen years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. On the morning of September 27, 2007, defendant robbed a bank by handing a teller a note demanding money and stating that he had a bomb; there was no evidence that he actually had a bomb or any other weapon. On this appeal, he contends that the State failed to prove that he was armed with a real or simulated deadly weapon and therefore his conviction must be reduced from first-degree robbery to second-degree robbery. He also contends that his sentence is excessive, particularly in light of his diagnosed mental illness. We reverse the first-degree robbery conviction, and remand for entry of an amended judgment of conviction (JOC) for second-degree robbery and for resentencing.

I

This was the most pertinent trial testimony. Lucy Gonzalez, a teller at the bank, testified that she was working in the fourth teller station when a man, whom she thought was a customer, came to her teller station and handed her a note on yellow paper with "red markings." She did not read the note. The man told her to "open the drawer and give me the money." Gonzalez's manager, Anne Beeman, who was standing behind her, opened the cash drawer and gave the man some money, after which he left the bank.

Another teller, Charlene Charles, saw the man and noticed him handing Gonzalez a note. She also heard Beeman asking what denominations he wanted. Charles did not read the note. She observed that the man had a "black case" of the sort that folded up. The man carried it under his arm when he left the bank. She confirmed that the man did not point a weapon at anyone and she told the police afterward that the crime "really didn't affect [her]."

Another teller, Danielle Vanderhorst, was working at the station next to Gonzalez. At some point she noticed a customer who seemed somewhat agitated and "pacing back and forth." She described him as "a Caucasian male" wearing a "baseball cap with sunglasses on, sweatshirt, jeans, black shoes" and carrying "a portfolio, like a portfolio case." When the prosecutor asked her for a further description of the "portfolio case," Vanderhorst testified that it was "[l]ike a business portfolio that you -- they may have had like a -- a note pad or something in it like . . . I don't know how else how to explain it. It wasn't a binder but like [a] . . . portfolio case maybe." She saw the man hand Beeman a note and saw her hand him some money from the cash drawer. From the man's odd demeanor, the way he was reaching over the counter, and the fact that he handed over a note, Vanderhorst believed he was carrying out a robbery. She did not hear the man say anything and did not see any weapon in his possession.

Anne Beeman, the branch manager, testified that on the morning of September 27, she was working at her computer at a desk in the bank lobby, when a co-worker pointed out a man in the teller line who didn't "look right." Although it was a warm day, this man was wearing a long sleeved shirt, a baseball cap, and sunglasses. The co-worker told her she had seen the man kneeling next to the vestibule doors, which could be locked with keys located at the bottom of the doors. Beeman thought that was unusual, and the man looked like a suspicious character. Beeman told the co-worker that she would stand behind the tellers and cough if she saw anything "out of the way." If Beeman coughed, the co-worker was to call the police.

From her vantage point behind the tellers, Beeman saw the man hand Gonzalez a note. At that point, Beeman intervened and told Gonzalez she would handle this transaction. Beeman asked the man what he wanted and he told her "to read the note." The note said "that he wanted 100's, 50's, and 20's, and that he had a bomb, and not to do anything." Beeman described the note as looking like "it was torn from a . . . binder, so it was ragged . . . on top." Beeman became "very concerned for the customers" and for herself and her employees "in case he did really have a bomb." However she testified that "I didn't have a way of knowing if he did or not." Beeman behaved as though "he did [have a bomb], but . . . didn't know if he did or not."

According to Beeman, when she read the note, she tried to delay the transaction until the police could arrive. As she was stalling, the robber "yelled at [her] to give him the money." She asked him if he would accept smaller denominations and if she could put the money in an envelope. He agreed, and she handed him an envelope with about $500 in it. At that point, he "reached over the counter and took the note back, and left the building." Beeman and a male co-worker, Marcelo Pirez, followed defendant outside "to see where he went just to see if we can trace" his route. They followed him to Wood Avenue, and they then returned to the bank.

With Beeman narrating, the prosecutor showed the jury a video from the bank's security camera. At one point in her narration, she explained to the jury that defendant "took a piece of yellow paper out of that brown or black thing he was carrying and handed it to Lucy [Gonzalez]." Asked if she recalled if the robber "was carrying anything else with him aside from the note," Beeman responded that "[h]e had something that was like a briefcase size, black, it looked like leather." On cross-examination she confirmed that she saw "something similar to that black folder" in his possession. At no point did she testify about what, if anything, she thought might be in the folder or case. Nor did she testify that defendant gestured to, or made any mention of, the case he was carrying. On cross-examination, she agreed that he did not "brandish any weapon of any sort." On re-direct, she answered "yes" to two leading questions, agreeing that when she "received that note" she believed "that there could be weapons" and "that there was possibly a bomb."

In his testimony, Pirez confirmed that, like Beeman, he believed that defendant looked suspicious when he entered the bank, because he appeared nervous, wore sunglasses inside the bank, wore his hat with the brim low over his face, and seemed to be holding the sleeve of his shirt over his hand. Pirez also noticed defendant kneeling by the front doors "where the locks are located." Later in his testimony Pirez mentioned in passing that defendant was "holding . . . like a small briefcase," but his testimony did not connect the briefcase to any possible weapon defendant might have had. It was clear from his testimony that what made Pirez concerned about defendant was his nervous demeanor, odd clothing, and possible tampering with the front door locks. Pirez testified that after defendant left the bank, he followed defendant, "at a safe distance," all the way to his car and noted the license plate number.

Using the license number, the police quickly located defendant and arrested him. During searches of defendant's home and car, the police found a partially-shredded note, a briefcase or "satchel," and clothing that matched the witnesses' descriptions of the robber's outfit. Defendant confessed to the robbery.

In his trial testimony, defendant stated that at the time of the robbery he was suffering from severe mental illness, and he had no recollection of the events at the bank. The defense also presented psychiatric expert testimony that defendant was suffering from untreated bi-polar disorder at the time of the robbery. The State's expert testified that defendant could "very well have" bi-polar disorder, but even if he did, it did not prevent him from forming the intent to rob the bank.

II

On this appeal, defendant raises the following two points for our consideration:

POINT I: BECAUSE THE EVIDENCE ON SIMULATION OF A WEAPON WAS INSUFFICIENT AND BECAUSE THE VICTIM DID NOT BELIEVE THERE WAS A CONCEALED WEAPON, A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN ISSUED ON THE FIRST-DEGREE ROBBERY CHARGE.1

POINT II: THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE BECAUSE THE TRIAL COURT ERRED IN NOT FINDING AN APPLICABLE MITIGATING FACTOR AND MR. DEKOWSKI'S OFFENSE IS LESS SERIOUS THAN A TYPICAL ROBBERY.

In addressing Point I, we begin by considering the robbery statute, which provides in pertinent part:

a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:

. . . .

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

. . . .

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 . . . is armed with, or uses or threatens the immediate use of a deadly weapon.

[N.J.S.A. 2C:15-1.]

A "deadly weapon" is defined as follows:

"Deadly weapon" means any firearm or other weapon, device, instrument, material or substance, . . . which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury;

[N.J.S.A. 2C:11-1c.]

On this appeal, defendant admits he is guilty of second-degree robbery, but contends that his conviction for first-degree robbery must be set aside because the State failed to prove that he threatened "the immediate use of a deadly weapon" during the robbery.

Our courts have interpreted N.J.S.A. 2C:15-1b to include not only robberies involving the use of a simulated weapon, such as a toy gun fashioned to look like a real gun, but robberies in which a defendant has no weapon at all but pretends to have one. See Statev. Huff, 292 N.J. Super. 185, 188-92 (App. Div.), aff'd o.b., 148 N.J. 78 (1997) (defendant told the victim he had a gun and "patted his waist" as though he had a gun under his jacket); Statev. LaFrance, 224 N.J. Super. 364, 371-73 (App. Div. 1988) (defendant stated he had a gun, threatened to shoot the victim, and placed his hand under his jacket as though he had a gun), aff'd o.b. onthis point, rev'd onother grounds, 117 N.J. 583, 595 (1990). However, a defendant must do something more than simply state that he has a weapon.

In State v. Hutson, 107 N.J. 222 (1987), a case in which two passengers robbed a cab driver, the passengers claimed to have a gun and one passenger was holding a newspaper. However, while a gun certainly could have been concealed inside the newspaper, that possibility was found insufficient to support a conviction for armed robbery. The Court focused on the definition of a "deadly weapon" for purposes of the armed robbery statute:

The portions of the statutory definition of a "deadly weapon" relevant to this appeal can be parsed into two elements. First, defendant must use a "firearm or other weapon, device, instrument, material or substance;" second, the manner in which that item is fashioned must lead the victim reasonably to believe it capable of producing death or serious bodily injury.

[Id. at 227.]

Thus, the victim must "have a subjective belief that the device or instrument [is] 'capable of producing death or serious bodily injury,'" and the victim's "subjective belief" must be reasonable "under the circumstances." Ibid.

On the other hand, no matter how strongly the victim believes that the assailant has a weapon, based only on the defendant's verbal threat, that is insufficient to prove armed robbery. "[T]here must be some tangible object possessed by the defendant that victim believes to be a deadly weapon." Ibid. However, "anything that simulates" a deadly weapon, even "a finger placed in the pocket in [the] shape of a gun and combined with threatening words or gestures," will suffice. Id. at 227-28 (citation omitted).

In Hutson, the Court found the State did not prove armed robbery, because the passenger's newspaper was not shaped or held as though it contained a weapon, and in his testimony the victim only mentioned in passing that one of the robbers was holding a newspaper. The victim did not state that he believed the robber had a gun concealed in the newspaper. "[T]here was simply no evidence whatsoever to suggest that the newspaper was fashioned or held in such a manner as to create any impression on the victim." Id. at 228. Therefore, there was no "link between the threat and the object viewed by the victim. . . . [T]he record as it stands does not generate an inference that defendant had created the reasonable impression that he was concealing a weapon under a newspaper." Id. at 228-29. In reaching its conclusion, the Court noted that the victim need not actually see the purported deadly object, so long as a defendant makes a convincing gesture that creates "the reasonable impression" that he is armed. Id. at 229.

In State v. Chapland, 187 N.J. 275 (2006), the Court addressed in detail the extension of Hutson to the case before it. In Chapland, the defendant grabbed the victim's purse and, when she struggled, he told her that he had a knife and stretched his hand behind his back to create the impression that he was reaching for the knife. The Court held that the combination of the statement and the gesture was enough to support a conviction for armed robbery. "An unequivocal or unambiguous simulation of a weapon possessed, as well as an ambiguous or equivocal gesture coupled with threatening words that complete the impression of a concealed weapon, can provide a sufficient factual basis for conviction of first-degree robbery." Id. at 292.

In reaching its decision, however, the Court reaffirmed that a defendant's mere statement that he has a weapon is insufficient. In discussing Hutson, the Court emphasized the need for something more:

The Court noted that the statutory definition of a "deadly weapon" could be "parsed into two elements," and identified them as follows: "[the] defendant must use a 'firearm or other weapon, device, instrument, material or substance;' . . . [and] the manner in which that item is fashioned must lead the victim reasonably to believe it capable of producing death or serious bodily injury." The newspaper that the taxicab driver observed could satisfy the definition of dangerous weapon so long as "it were fashioned so as to animate the requisite reasonable belief in the victim." We held that based on the record presented the defendant could not be found guilty of first-degree robbery because the State did not present any evidence that the newspaper was fashioned or held in such a manner that would create a reasonable impression that it either was a weapon or concealed a weapon. The record lacked any "link between the threat and the object viewed by the victim"; however, we added that "[h]ad the newspaper been presented to the victim so as to create the reasonable impression that it concealed a dangerous object, the definition of dangerous weapon would have been satisfied."

[Id. at 284-85 (internal citations omitted).]

While confirming this approach, the Court acknowledged that its interpretation of N.J.S.A. 2C:15-1b and N.J.S.A. 2C:11-1c might appear to be broader than the statutory language, but concluded that it was consistent with the Legislature's intent:

We recognize that the language of N.J.S.A. 2C:11-1c, and the legislative history of the provision, suggest the Legislature intended that, to be found guilty of armed robbery based on simulated possession of a weapon, a defendant would actually possess an object in the nature of a "device, instrument, material or substance." Since the enactment of the statute, however, this Court has concluded that a first-degree robbery conviction may be based on the use of a hand or gestures, coupled with threatening words, simulating possession of a weapon. Although it may be argued that those opinions have interpreted the statute more expansively than the Legislature originally intended, the Legislature is presumed to be aware of the judicial construction placed on an enactment. In this case, that construction is supported by a long period of legislative acquiescence or failure to amend the statute indicating agreement with the Court's holdings.

[Id. at 290-91 (citations omitted).]

In light of these precedents, we conclude that in this case, the State failed to present evidence of first-degree robbery. As in Hutson, the victims in this case did nothing more than mention in passing that defendant happened to be carrying an object. The object could be completely innocuous or could conceal a weapon, but the State failed to prove that defendant in fact presented it to the victims as though it contained a weapon. Beeman was the only victim who actually read the note. Yet neither she nor any of the other witnesses testified that they believed defendant had a bomb in the briefcase, or that he led them to believe that it contained a bomb, or even that it was shaped in such a way that it was likely to hold a bomb. One of the witnesses, Vanderhorst, described it as the kind of "portfolio" that contained notepads. Gonzalez described it as a folding case. Defendant did not state or indicate that the briefcase contained a weapon. He did not brandish it or make any gesture toward it.

Perhaps, by asking the witnesses a few more questions, the prosecutor could have elicited the necessary proofs. Or perhaps those questions would have confirmed that the witnesses viewed the briefcase as innocuous or did not think about it at all during the robbery. In any event, rather than try to prove a connection between the briefcase and the bomb threat, the State focused on the evidence that defendant made a threat that he had a deadly weapon and his threat caused Beeman to be afraid. That evidence established second-degree robbery. N.J.S.A. 2C:15-1a. It was not enough to establish first-degree robbery. N.J.S.A. 2C:15-1b. See Chapland, supra, 187 N.J. at 284-85; Hutson, supra, 107 N.J. at 228-29.

Accordingly, it was plain error to submit the first-degree robbery count to the jury. See R. 2:10-2; State v.Reyes, 50 N.J. 454, 458-59 (1967). We reverse defendant's conviction for first-degree robbery. Since defendant concedes what is unavoidable on this record - he is guilty of second-degree robbery - we remand this case to the trial court to amend the JOC to a conviction for second-degree rather than first-degree robbery. We also remand for resentencing on that second-degree conviction. We do not reach defendant's Point II. On resentencing, the court shall reconsider the applicable aggravating and mitigating factors, and both sides shall be given an opportunity to present arguments on those factors.

Reversed and remanded.

1 Defendant moved for a judgment of acquittal at the trial but did not present this specific argument. Therefore we apply the plain error rule. R. 2:10-2.