701 A.2d 464 | N.J. Super. Ct. App. Div. | 1997
The opinion of the court was delivered by
Defendant and Nathaniel Davis were indicted for conspiracy to commit burglary and robbery (count one), second degree burglary with a handgun (count two), armed robbery (count three), aggravated assault (count four), unlawful possession of a handgun (count five), and possession of the handgun for unlawful purpose (count six). Tried jointly in 1992, defendant and Davis were both convicted of third degree burglary on count two, theft of movable property as a lesser included offense on count three, and conspiracy (to commit burglary, trespass, theft of movable property and unlawful taking of a means of conveyance) on count one.
Defendant was sentenced to seven years in the custody of the Commissioner of Corrections for the theft offense and to a concurrent four year term for burglary. The conspiracy conviction was
On this appeal defendant argues:
POINT I THE TRIAL JUDGE’S CHARGE ON ACCOMPLICE LIABILITY DENIED DEFENDANT A FAIR TRIAL AS HE FAILED TO INSTRUCT THE JURY THAT THE PRINCIPAL AND ACCOMPLICE COULD BE GUILTY OF DIFFERENT CRIMES BASED ON THEIR OWN INDIVIDUAL MENTAL STATES. (Not Raised Below)
POINT II THE DEFENDANT’S CONVICTIONS FOR SECOND DEGREE THEFT AND CONSPIRACY MUST BE VACATED AS DEFENDANT WAS CONVICTED OF THE THEFT OF A MOTOR VEHICLE, A THIRD DEGREE OFFENSE. (Not Raised Below)
I.
After Kenneth Bynum, the driver of a New Jersey Transit bus, reached his final destination and vacated the bus on December 15, 1991, defendant convinced the driver to return to the bus and to look for his gloves which were found under the seat. Defendant and Davis had been passengers on the bus and had originally exited one stop before the final destination. While Bynum was in the men’s room shortly thereafter he heard the bus start to drive away. He ran outside and saw defendant sitting in the driver’s seat. Bynum noticed “a screwdriver with a pair of grip pliers inserted into the control valve [which] make the doors open and close.” Bynum also noticed that the bus stopped down the road to pick up Davis. Bynum gave chase.
A passerby, Martin McDonald, and Bynum tried to stop the bus. When the bus had difficulty making a turn, Bynum managed to pull the screwdriver from the control valve on the door so as to lock the wheels. Defendant and Davis exited through the rear
There was testimony that Davis had been discharged as an employee of New Jersey Transit approximately a year and a quarter before the bus was stolen. There was also testimony that the bus cost “approximately $175,000.”
II.
We reject defendant’s claim, raised as plain error, that the trial judge’s charge on accomplice liability “failed to instruct the jury that the principal and accomplice could be guilty of different crimes based on their own individual mental states.” Given defendant’s role in the theft and the nature of the offense,
III.
We reject the State’s contention that by not objecting to a charge on second degree theft, the issue concerning gradation was waived. We are dealing with an issue of sentence legality. Cf. State v. Vasquez, 129 N.J. 189, 195, 609 A.2d 29 (1992) (sentence issue not waived by guilty plea).
In its special verdict, the jury specifically found that the value of the stolen bus exceeded $75,000, and the interesting issue presented by this case is whether defendant was convicted of a second or third degree crime. N.J.S.A. 2C:20-2 provides for the grading of theft offenses and, in turn, the range of sentence. N.J.S.A. 2C:20-2b(1) provides that “[tjheft constitutes a crime of the second degree if: (a) [tjhe amount involved is $75,000.00 or more____” N.J.S.A. 2C:20-2b(2) provides that “[tjheft constitutes a crime of the third degree if: ... (b) [tjhe property stolen is a firearm, motor vehicle, vessel, boat, horse or airplane----” Liter-ally, this offense could be considered second degree in light of the value of the stolen property, or third degree in light of the nature of the property stolen.
The parties do not note that N.J.S.A. 2C:20-2b(2)(b) did not read at the time of this offense in 1991 and trial in 1992 as it does today. That provision was amended by L. 1993, c. 363 (effective Jan. 4, 1994) to substitute the words “motor vehicle, vessel” for “automobile.” The parties agree that a bus is a “motor vehicle,” citing N.J.S.A. 39:1-1, but do not consider whether a bus was an “automobile” at the time of this offense. We note that at that time N.J.S.A. 39:1-1 defined “automobile,” as it does today, to include “all motor vehicles except motorcycles.” Accordingly, the 1993 amendment does not affect the result in this case and there is no ex post facto problem. In fact, if a bus was not an “automobile” in 1991, the result in this case would be the same because of the theft of property valued at over $75,000 without any question
In State v. Moran, 73 N.J. 79, 372 A.2d 1092 (1977), defendant was indicted for assault and battery upon a police officer, atrocious assault and battery as a result of the beating, and larceny of a pistol from the officer, all in violation of the former Title 2A. Defendant pled guilty and was sentenced to concurrent terms on all three counts. Id. His subsequent motion to reduce sentence was denied and he appealed challenging the sentence as excessive. Id. at 80, 372 A.2d 1092. The Court concluded that “defendant’s attack on the police officer constituted violations of’ both N.J.S.A. 2A:90-4, assault and battery upon a police officer, and N.J.S.A. 2A:90-1, atrocious assault and battery. Id. at 81, 372 A.2d 1092. The Court also found that there was no legislative intent to permit separate punishment for the two separate offenses because “a single attack on an officer, even if atrocious, could result in only one conviction.” Id. at 81, 372 A.2d 1092. Thus, the Court held that the offenses must merge, id, and added:
In a situation such as is here presented, if the State elects to proceed under both statutes and the jury convicts on each, judgment of conviction can be imposed only on one of the counts, the State making the choice as to the count on which judgment of conviction and sentence is to be imposed.
[Id. at 82, 372 A.2d 1092.]
In the companion case of State v. Richardson, 73 N.J. 82, 372 A.2d 1093 (1977), defendants were convicted of assault and battery upon a police officer, atrocious assault and battery, and other crimes, as a result of a beating of a police officer while on patrol. Relying upon Moran, supra, the Court held “that where there is a single attack on a police officer, such attack, if atrocious, would be a violation of both N.J.S.A. 2A:90-1 (atrocious assault and battery) and N.J.S.A. 2A:90-4 (assault and battery upon a police officer acting in the performance of his duties while in uniform).” Id. at 86, 372 A.2d 1093. It concluded that the defendant could be convicted and sentenced for only one offense or the other and that “the State should make the choice as to the
This case involves a grading provision of the theft statute under which defendant was convicted, and therefore the eases giving the prosecutor the right to elect the governing statutory provision under which to prosecute are not dispositive. Nevertheless, the rationale of the above cases makes clear that when two statutes govern the same offense, the Legislature generally intends the defendant to be tried and sentenced for the more serious offense or grade of offense. See N.J.S.A. 2C:1-8 (the less serious offense merges into the greater).
While criminal statutes are strictly construed, State v. Valentin, 105 N.J. 14, 17, 519 A.2d 322 (1987), we conclude that where stolen property has a value of more than $75,000, the Legislature intended defendant to be sentenced for a second degree crime even if the theft of that property would otherwise be a third degree crime.
We continue to gradate based on amount stolen and also continue the policy of upgrading certain types of thefts regardless of the amount stolen. In this regard, we reject as too lenient the grading system recommended by the [Model Penal Code] and look more in the direction of the Codes of other states, particularly New York.
... Second, we make thefts of more than $500 crimes of the third degree and upgrade certain other thefts to a crime of the third degree without regard to amount; thefts of firearms, vehicles, drugs, some receiving stolen property, thefts from the person, in violation of a fiduciary obligation or of public records____
[N.J. Penal Code, VoL II Commentary (Final Report of the N.J.Crim. Law Revision Comm’n 1971), comment to 2C:20-2 at 220-21.]4
We are thus satisfied that the Legislature intended that the theft of a motor vehicle constitutes at least a third degree crime, and constitutes a second degree crime when its value exceeds $75,000. The same was true with respect to the theft of a bus in 1991, whether or not a bus was then considered an “automobile.”
The judgment and sentences imposed are affirmed.
Bynum initially named Davis as the passenger who returned for the gloves and the one who drove off with the bus. He later identified defendant as that person. He also identified defendant as the one "hitting [him] on the hands trying to get [Bynum] off the bus." Bynum identified Davis as having a gun. The jury acquitted defendants on the gun possession charges and second degree burglary.
We note that no penalty was imposed under N.J.S.A. 2C:20-2.1.
Of course, the jury must determine the value of the property stolen. See State v. D’Amato, 218 N.J.Super. 595, 606-07, 528 A.2d 928 (App.Div.1987), certif. denied, 110 N.J. 170, 540 A.2d 169 (1988).
We need not consider subsequent developments with respect to New York law or other provisions of our Code of Criminal Justice. We, of course, quote the Commentary to the 1971 Criminal Law Revision Commission report only for the purpose of considering the issue with which we deal, and not other provisions relating to theft which, after adoption, were amended from time to time.
