STATE OF NEW JERSEY VS. GREGORY P. COBBS (13-07-0893, MERCER COUNTY AND STATEWIDE), 164 A.3d 1062

Defendant filed a 2007 New Jersey gross income tax return late (filed July 7/8, 2008), reporting ~$2.3M income and $196,065 tax due (no extension requested) and did not remit payment.
The indictment charged (count one) intentional failure to pay $194,817.56 for 2007 between July 8, 2008 and Feb. 27, 2013, and (count two) failure to pay $18,336 for 2008 between Oct. 15, 2008 and Feb. 27, 2013.
Pioneer Credit Recovery (outside collector) notified defendant in Feb. 2009; repeated telephone contacts occurred March 2009–Feb. 2010 with unkept promises to pay; in Feb. 2010 defendant said he sent a check via FedEx but none was enclosed.
A grand jury returned the two-count indictment on July 10, 2013; defendant was denied PTI and appealed that denial; he then moved to dismiss count one as time-barred under the five-year statute of limitations.
Trial court initially granted dismissal but reversed on reconsideration, holding the crime was a continuing offense and the limitations period began to run after the last act evidencing intent (Feb. 2010). Defendant entered a conditional guilty plea to count one and reserved appeal on timeliness; the Appellate Division reversed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
When does the 5-year statute of limitations under N.J.S.A. 2C:1-6 begin for intentional failure to pay tax (N.J.S.A. 54:52-9(a))?	Limitations tolled until last affirmative act evidencing evasion (Feb. 2010); crime is continuing until last evasive act.	Crime is a point-in-time offense; limitations begin the day after tax is due (Apr. 16, 2008) or at least when intent first manifested (here July 8, 2008).	Limitations begins when both elements (non-payment when due + intent to evade/avoid or not make timely payment) have occurred; here indictment alleged both by July 8, 2008, so count one was time-barred.
Was the prosecutor’s denial of PTI a patent and gross abuse of discretion?	N/A (prosecutor opposed PTI based on defendant's history and circumstances).	Denial was arbitrary and abused discretion, improperly weighing factors.	Denial of PTI was not a patent and gross abuse of discretion and is affirmed.

State v. Diorio, 216 N.J. 598 (discusses limitations dichotomy between discrete and continuing offenses and presumption against finding continuing offenses)
United States v. Dandy, 998 F.2d 1344 (6th Cir.) (federal tax-evasion case holding limitations may run from last affirmative evasive act — discussed and distinguished)
United States v. Sams, 865 F.2d 713 (6th Cir.) (willful failure-to-pay analysis: limitations begin when willfulness/intent is manifested)
United States v. Pelose, 538 F.2d 41 (2d Cir.) (willful failure-to-file: crime completes when willfulness manifests, not merely at due date)
United States v. McGill, 964 F.2d 222 (3d Cir.) (distinction between evasion requiring affirmative acts and willful failure-to-pay/file offenses)
State v. Barasch, 372 N.J. Super. 355 (App. Div.) (interpreting criminal tax provisions and mens rea distinctions)
State v. K.S., 220 N.J. 190 (addresses standard for PTI denial review)