Conford, Kolovsky and Carton. The opinion of the court was delivered by Kolovsky, J.A.D.
The issue presented on this appeal involves the interplay between the worthless check statute, now N.J.S.A. 2A:111-15 to 17, and the statute making it a misdemeanor to obtain money or property by false pretenses, now N.J.S.A. 2A:111-1.
An indictment returned by the Essex County Grand Jury charged that on May 14, 1968, and contrary to the provisions of N.J.S. 2A:111-1, "John Covington a/k/a Dr. John J. Roberts [and] Barbara Delany a/k/a Barbara J. Roberts, * * * intending to cheat and defraud Pan American World Airways * * * did * * * unlawfully, knowingly and designedly falsely represent and pretend" to Pan American World Airways (Pan-Am) that they "had opened a checking account in the name of J. R. Enterprises, with the First National State Bank of New Jersey, and had established sufficient credit through said checking account for the payment of a check in the amount of $412.50, whereas in truth and in fact" as they knew they had not established sufficient credit with the bank for the payment of the check; that by means of said false representations and pretenses, Pan-Am being deceived thereby, defendants obtained three tickets for a trip from Newark to Nassau.
Thereafter defendant Covington retracted his prior plea of not guilty and pleaded guilty to the indictment. He was sentenced to a term of two to three years in State Prison to run concurrently with the sentence he was then serving in a federal penitentiary.
Defendant appeals, contending in the words of the only point in his brief that:
The judgment of conviction and the sentence imposed upon the defendant are illegal in that defendant was indicted, pled guilty and was sentenced for obtaining money by false pretenses under N.J.S.
2A:111-1, when the criminal acts charged were encompassed by the more specific statute dealing with the overdrawing of checking accounts, N.J.S. 2A:111-15.
If defendant be correct in his contention, then the maximum sentence to which he may be subjected for the criminal act charged is that provided in N.J.S.A. 2A:111-15, "a fine of not more than $1000 or * * * imprisonment for not more than 1 year or both," and the sentence imposed, 2 to 3 years in State Prison, although within the maximum authorized for a violation of N.J.S.A. 2A:111-1 (see N.J.S.A. 2A:85-7), is illegal.
Defendant's argument is bottomed on State v. Morse , 109 N.J. Super. 160 (App. Div. 1970) in which the court said,
Noting the magnitude and uniqueness of check frauds, * * * and that the elements of the crime of obtaining money under false pretenses, as alleged here, and uttering a worthless check are identical, we conclude that the Legislature consciously and deliberately intended that one uttering a worthless check in an amount greater than $200 should be indicted under the specific statute [ N.J.S.A. 2A:111-15] and not the more general one [ N.J.S.A. 2A:111-1] that had been previously enacted. [at 165]
With all due deference and respect to the views thus expressed by another part of this court, we cannot concur therein. In our view, the mere fact that a worthless check is the modus operandi used in obtaining money or property by false pretenses does not bar a prosecution under N.J.S.A. 2A:111-1. The two statutes are an example of the very common situation in which criminal statutes overlap in prohibiting the same basic act and in which "the proper prosecuting authority in the sound exercise of the discretion committed to him may proceed under either act." State v. States , 44 N.J. 285, 292 (1965); see State v. Fary , 16 N.J. 317, 322-323 (1954); State v. Reed , 34 N.J. 554 (1961); State v. White , 105 N.J. Super. 234, 236-237
(App. Div. 1969), certif. den. 54 N.J. 242 (1969); State v. Milano , 94 N.J. Super. 337, 339-340 (App. Div. 1967); see also, State v. Drake , 79 N.J. Super. 458, 461-463 (App. Div. 1963), in which the court rejected the claim that the enactment of N.J.S.A. 43:21-16(a) penalizing one who makes a false statement or representation to obtain or increase unemployment benefits ...