                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NOS. A-0201-17T4
                                                                     A-0518-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANDREA K. DUNBRACK,

     Defendant-Appellant.
______________________________

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GABRIEL RODRIGUEZ,

     Defendant-Appellant.
_______________________________

                    Argued April 10, 2019 — Decided May 1, 2019

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment No. 15-01-0058.
            Robin Kay Lord argued the cause for appellant Andrea
            K. Dunbrack.

            Peter T. Blum, Assistant Deputy Public Defender,
            argued the cause for appellant Gabriel Rodriguez
            (Joseph E. Krakora, Public Defender, attorney; Peter T.
            Blum, of counsel and on the brief).

            Narline Casimir, Assistant Prosecutor, argued the cause
            for respondent in A-0201-17 (Angelo J. Onofri, Mercer
            County Prosecutor, attorney; Randolph E. Mershon, III,
            Assistant Prosecutor, of counsel and on the brief).

            Narline Casimir, Assistant Prosecutor, argued the cause
            for respondent in A-0518-17 (Angelo J. Onofri, Mercer
            County Prosecutor, attorney; Narline Casimir, of
            counsel and on the brief).

PER CURIAM

      In these back-to-back appeals, defendant Andrea Dunbrack challenges her

December 15, 2016 judgment of conviction on one count of first-degree robbery,

N.J.S.A. 2C:15-1(a)(1); two counts of second-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(b); and one count of second-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). She also appeals from

her sentence.

      Defendant Gabriel Rodriguez appeals from his December 15, 2016

judgment of conviction on one count of first-degree robbery, N.J.S.A. 2C:15-

1(a)(1); one count of second-degree unlawful possession of a weapon, N.J.S.A.


                                                                      A-0201-17T4
                                      2
2C:39-5(b); one count of second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a); and one count of fourth-degree resisting arrest,

N.J.S.A. 2C:29-2(a)(2). He also challenges his sentence.      We reverse and

remand for a new trial for both defendants.

      We take the following facts from the record. During the evening of June

15, 2014, the victim consumed several beers at multiple bars in Trenton. Around

midnight, Rodriguez approached the victim and offered him a cheap taxi ride.

      At approximately 1:20 a.m., Rodriguez arrived in the front-passenger's

seat of a gray-colored vehicle driven by Dunbrack.      The victim sat in the

backseat of the vehicle and told Dunbrack to take him to his home in

Lawrenceville. After driving for a few minutes, the victim noticed the vehicle

was in Hamilton Township. When the victim asked Rodriguez and Dunbrack

where they were taking him, Dunbrack suddenly pulled the car over. Rodriguez

then opened the passenger door, pointed a gun at the victim, and stated "[g]ive

me your money, otherwise I'll kill you." The victim gave Rodriguez his wallet

and cellphone. Rodriguez then punched the victim in the face and instructed

him to strip naked. When the victim failed to listen, Rodriguez punched and

pistol-whipped him.




                                                                       A-0201-17T4
                                       3
       At approximately 1:45 a.m., Hamilton Township Police Officers Robert

Whartenby and David Walls were returning from a dispatch and noticed a

vehicle with its headlights on in the parking lot next to an abandoned building.

As officers approached, they noticed the driver's side door was open and the

vehicle was empty. When they got closer, the officers saw Rodriguez standing

with his back towards the vehicle and Dunbrack standing by the passenger's side

taillights.   Walls exited the patrol vehicle, walked towards Dunbrack, and

noticed a small fire and a man, later identified as the victim, lying on the ground

naked in a fetal position. Whartenby noted the victim had a visibly high heart

rate, and his face and head were covered in blood.

       Rodriguez fled on foot, but was apprehended a few hours later. He had

money and four cellular telephones in his possession, including the victim's

telephone.

       Meanwhile, Walls extinguished the fire and tended to the victim. Officers

confirmed the vehicle was registered to Dunbrack.         Whartenby observed a

woman's purse and a revolver on the driver's seat of the vehicle. He placed

Dunbrack into custody and sat her in the backseat of the patrol vehicle. He

observed Dunbrack moving around and saw she had moved her handcuffed




                                                                           A-0201-17T4
                                        4
hands from behind her back to the front of her body. Dunbrack was searched at

the scene, but nothing was recovered.

      Officers recovered the victim's blue t-shirt, underwear, and socks located

near the vehicle where the victim was laying. Inside Dunbrack's vehicle, they

recovered the victim's pants, passport, wallet, and money. The victim was

transported to the hospital where he received multiple staples on his head and

sutures above his left eye.

      Dunbrack was searched again at police headquarters and a semi-automatic

handgun was discovered hidden in her bra. Dunbrack's feet and Rodriguez's

hands were also bloody. Police took samples of the blood on Dunbrack and

Rodriguez, the revolver recovered from Dunbrack's vehicle, and the gun from

her person. The blood located on the revolver and on Dunbrack's feet matched

the victim's DNA. The test results for the blood on Rodriguez's hands were

inconclusive.

      Dunbrack and Rodriguez's cases were tried together before a jury. Both

stipulated neither had ever applied for or were issued a permit to carry a

handgun.

      Dunbrack testified she had no direct involvement in the crime. She

claimed Rodriguez was driving her from her job as an exotic dancer in Atlantic


                                                                        A-0201-17T4
                                        5
City to their hotel in northern New Jersey because her license was suspended.

She asserted an argument occurred because Rodriguez wanted to go to a bar and

she wanted to go home. Regardless, Rodriguez stopped at a bar in Trenton. She

claimed Rodriguez entered the bar, but she stayed in the vehicle and drove away

for a few minutes before returning to the bar. She then saw Rodriguez walk out

of the bar with the victim.

      Dunbrack testified Rodriguez drove the vehicle while she and the victim

sat in the backseat. She claimed the victim began speaking to her in Spanish

and put his hand on her leg, which she removed and said "no." She claimed the

victim simultaneously began to remove his pants, expose himself, and climb on

top of her. Rodriguez then reached into the back seat and hit the victim in the

head with something, which caused the victim to start bleeding in the car.

Dunbrack claimed she maced and kicked the victim. Rodriguez then pulled

over, dragged the victim out of the car, threw Dunbrack's purse into the front

seat, and began fighting the victim. Dunbrack testified Rodriguez instructed her

to hold the gun, which she hid in her bra.

      Police recovered no evidence of blood from inside the vehicle and

Whartenby testified he did not smell mace in the car or on the victim. Moreover,

Dunbrack was unable to provide an explanation why the victim was naked, or


                                                                        A-0201-17T4
                                       6
why his pants, wallet, and passport were in the front seat of the car. Dunbrack

also conceded she did not mention the alleged sexual assault when police

arrived.

      During the charge conference, Dunbrack's counsel sought a charge for a

justification defense based on "use of force in defense of one's self and defense

of others." Importantly, her counsel also mentioned a lesser-included offense

charge stating:

                   And I'm just wondering . . . if justification would
            be a charge that we should have the jury consider. And
            if we go there, could there also be the various levels of
            assault rather than an actual robbery. If in fact the jury
            didn't believe there was a robbery, . . . it could be an
            assault, second or third degree, even a simple assault if
            they thought that. And . . . possibly a theft from a
            person or a theft in general if in fact there was some
            type of justification for the altercation and the assault.

                    But then . . . Rodriguez is leaving the scene with
            the phone in his pocket. Was it an actual robbery[?]
            [I]s it a theft[?] So I just wanted to throw that out there
            based on . . . Dunbrack's testimony.

Dunbrack's counsel also mentioned Rodriguez could be "justified in pulling [the

victim] out of the car" because of the alleged sexual assault.

      The discussion then turned to the State's objection as to whether it had

received adequate notice that the defense would be seeking the charges, which

the State ultimately conceded. The trial judge then addressed and determined

                                                                          A-0201-17T4
                                        7
whether the justification instruction was appropriate to charge. The judge and

counsel agreed to modify the instruction regarding deadly-force and the duty to

retreat because it was not applicable. No further discussion regarding lesser-

included offenses occurred and the judge did not charge the jury accordingly.

Rodriguez and Dunbrack were convicted of all charges, with the exception of

one of the possession of a weapon for an unlawful purpose charges against

Dunbrack, which the judge dismissed.

      Approximately three months later, Dunbrack filed a motion for a judgment

of acquittal and a motion for a new trial. She attached a handwritten letter

written by Rodriguez purporting to exonerate her.       The court denied both

motions and sentenced both defendants. These appeals followed.

      Dunbrack raises the following points on appeal:

            POINT ONE – THE TRIAL COURT ERRED IN
            RULING THAT DEFENDANT'S MOTION FOR A
            NEW TRIAL BASED ON NEWLY DISCOVERED
            EVIDENCE WAS TIME BARRED BECAUSE A
            MOTION FOR A NEW TRIAL BASED ON NEWLY
            DISCOVERED EVIDENCE MAY BE MADE AT
            ANY TIME.

            POINT TWO – THE TRIAL COURT'S DECISION
            DENYING DEFENDANT'S MOTION FOR A NEW
            TRIAL BASED ON NEWLY DISCOVERED
            EVIDENCE MUST BE REVERSED BECAUSE THE
            CO-DEFENDANT'S   LETTER  EXONERATING
            DEFENDANT    IS    MATERIAL,    NEWLY

                                                                       A-0201-17T4
                                       8
      DISCOVERED,   AND    WOULD                PROBABLY
      CHANGE THE JURY'S VERDICT.

      POINT THREE – A QUALITATIVE WEIGHING OF
      THE    AGGRAVATING     AND    MITIGATING
      FACTORS DOES NOT SUPPORT THE IMPOSITION
      OF AN AGGREGATE SENTENCE OF [THIRTEEN]
      YEARS WITH AN [EIGHTY-FIVE PERCENT]
      PERIOD OF PAROLE INELIGIBILITY.

In her reply-brief Dunbrack argues,

      POINT ONE – THE TRIAL COURT'S DECISION
      DENYING DEFENDANT'S MOTION FOR A NEW
      TRIAL BASED ON NEWLY DISOVERED [SIC]
      EVIDENCE MUST BE REVERSED.

Rodriguez raises the following points on his appeal:

      POINT I – A NEW TRIAL SHOULD BE OCCUR
      [SIC] BECAUSE THE COURT MISTAKENLY
      NEGLECTED TO CHARGE THEFT AS A LESSER-
      INCLUDED ALTERNATIVE TO ROBBERY WHEN
      THE TESTIMONY SHOWED THAT THE THEFT
      MIGHT HAVE BEEN AN AFTERTHOUGHT AFTER
      A FIGHT WAS OVER. U.S. CONST. AMEND. XIV;
      N.J. CONST. ART. I, PARA. 1.

      POINT II – A RESENTENCING SHOULD OCCUR
      BECAUSE THE COURT DID NOT EXPLAIN WHY
      IT FOUND AGGRAVATING FACTORS THREE,
      SIX, AND NINE, AND THE APPARENT REASON
      WAS A SERIES OF PRIOR ARRESTS FOR WHICH
      NO DISPOSITION WAS KNOWN. U.S. CONST.
      AMEND. XIV; N.J. CONST. ART. I, PARA. 1.




                                                           A-0201-17T4
                                 9
      We address only the claim that the trial judge failed to sua sponte charge

the jury on the lesser-included offense of theft and only charged robbery.

Because we find this was reversible error requiring a new trial, we do not reach

the other arguments raised by the parties.

      When a defendant does not object to a jury instruction at trial, we review

the charge for plain error. R. 1:7-2; R. 2:10-2; State v. McKinney, 223 N.J. 475,

494 (2015). Plain error is a "[l]egal impropriety in the charge prejudicially

affecting the substantial rights of the defendant sufficiently grievous to justify

notice by the reviewing court and to convince the court that of itself the error

possessed a clear capacity to bring about an unjust result." State v. Adams, 194

N.J. 186, 207 (2008) (alteration in original) (quoting State v. Jordan, 147 N.J.

409, 422 (1997)).

      As a general proposition, "[n]o defendant should be convicted of a greater

crime or acquitted merely because the jury was precluded from considering a

lesser offense." State v. O'Carroll, 385 N.J. Super. 211, 223-24 (App. Div. 2006)

(quoting State v. Muhammad, 182 N.J. 551, 577 (2005)). "A trial judge . . . 'has

an independent obligation' to instruct the jury on lesser-included charges when

the evidence 'clearly indicate[s] that a jury could convict on the lesser while

acquitting on the greater offense.'" Id. at 224 (alteration in original) (quoting


                                                                          A-0201-17T4
                                       10
State v. Jenkins, 178 N.J. 347, 361 (2004)). "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. Maloney, 216 N.J. 91,

107 (2013) (quoting State v. Thomas, 187 N.J. 119, 132 (2006)).

      "The Code . . . incorporates theft as an element of robbery." State v.

Mejia, 141 N.J. 475, 495 (1995). "All robberies are thefts; robbery is simply a

greater offense that always includes theft." State v. Sein, 124 N.J. 209, 229

(1991) (citing N.J.S.A. 2C:15-1). "Although robbery may consist of an assault

on one victim following a theft from another . . . , theft or attempted theft is

always a necessary element of any robbery[.]" Mejia, 141 N.J. at 495 (citations

omitted).

      As we noted, Dunbrack's counsel did raise the issue of a lesser-included

charge. However, the discussion during the charge conference appears to have

focused on other aspects of the jury instructions.

      The trial judge's jury instruction on robbery was as follows:

                  In order for you to find . . . defendant or
            defendants guilty of robbery, the State is required to
            prove each of the following elements beyond a
            reasonable doubt:



                                                                          A-0201-17T4
                                       11
                    1. That . . . defendant or defendants were in the
              course of committing a theft;

                      2. While in the course of committing that theft,
              . . . defendant or defendants knowingly inflicted bodily
              injury or used force upon another.

                      As I have said, the State must prove beyond a
              reasonable doubt that . . . defendant or defendants were
              in the course of committing a theft. In this connection,
              you are advised that an act is considered to be "in the
              course of committing a theft" if it occurs in an attempt
              to commit the theft, during the commission of the theft
              itself, or in the immediate flight after the attempt or the
              commission.

                    Theft is defined as the unlawful taking or
              exercise of unlawful control over property of another
              with the purpose to deprive him thereof.

Although the charge defined theft, the parties do not dispute that the remainder

of the judge's instructions, which we need not repeat here, informed the jury it

could only determine whether defendants were guilty of robbery.

      The request by counsel for the lesser-included charge during the charge

conference could have been clearer, as opposed to merely "throw[ing the charge]

out there" for the judge's consideration. Notwithstanding, the trial judge had the

duty, independent of counsel's request, to sua sponte charge the jury accordingly

where the facts clearly indicated it could acquit defendants of the robbery, but

find theft.   The facts demonstrated a jury could find defendants had acted


                                                                            A-0201-17T4
                                         12
individually or in concert to deprive the victim of his property. For these

reasons, the failure to give the lesser-included offense charge was plain error

clearly prejudicial to defendants because it presented the jury with an all-or-

nothing decision to convict or acquit only on the robbery.

      Reversed and remanded for a new trial as to both defendants. We do not

retain jurisdiction.




                                                                       A-0201-17T4
                                      13
