Handler, J.s.c., Temporarily Assigned.
[121 NJSuper Page 491] This is a criminal prosecution in which defendants Jack Thyfault and Theresa Sirimarco are charged in separate counts with the crimes of conspiracy, obtaining money by false pretenses, impersonation, embezzlement and attempted obtaining money by false pretenses between 1968 and 1971. Trial by jury was waived by defendants.
Jack Thyfault for many years had been in the business of repossessing automobiles to enforce liens, a business subject to the Garage Keepers Lien Act, N.J.S.A. 2A:44-20 et seq. He operated this business under the name of Major Auto Recovery Service at 21-23 Jacob Street, Newark, a two-story building with an office in the basement and an adjoining garage. For a long time Theresa Sirimarco lived with Thyfault as his wife although they were not lawfully married until August 1971. She assisted actively in the business by answering the telephone, giving information, repossessing vehicles, collecting moneys for the release of vehicles, giving receipts and transmitting moneys to lien holders and claimants.
Major Auto's customers were owners of garages or gas stations and others in the business of repairing or rendering services in connection with motor vehicles, those who had claims for work performed upon automobiles and required the enforcement of such claims and liens. Major Auto apparently obtained customers through advertisements such as calendars, flyers and its listing in the telephone directory; some customers had come to know of Major Auto by word-of-mouth.
In a typical case, the owner of a gas station or garage would call in response to such an ad or reference and inquire as to whether and under what conditions Thyfault would offer his services in the enforcement of liens. Thyfault usually indicated that he would repossess or pick up any vehicles, that he would collect from the car owner all moneys due for the payment of any outstanding claims, and that his services would not cost the garageman anything. He created the impression that in this business he was a constable. Some of his advertising material, the telephone listing and signs in and on the premises indicated that defendants were "constables." On a particular job defendants would usually get a request from such a garage owner over the telephone to repossess a car. The amount of the bill, the make of the car, the name of the owner and such pertinent
information would be given defendants. Utilizing this information defendants themselves would prepare a form warrant which purported to authorize Major Auto, as the agent of the particular claimant, to repossess a vehicle to enforce the lien under the Garage Keepers Lien Act. Ordinarily these warrants were not first prepared, completed or executed by the lien claimant prior to their use by defendants in the enforcement of liens. Moreover, defendants did not prior to a repossession verify with the claimant as to whether he had made any personal or written demand upon the car owner for the payment of the outstanding bill.*fn1
When a car had been repossessed by defendants, ostensibly pursuant to such a warrant, they would demand of car owners the amount of money inserted in the warrant as the outstanding bill and also for an additional sum, a flat $55 which varied slightly in some cases. Only upon request, when pressed, would they inform car owners as to the basis of this additional charge. They frequently stated the $55 was for towing or storage and also, from time to time, it was said to include "interest," "fees" or "constable fees." It did not appear that defendants actually calculated their cost for towing or storage, although there was a storage rate of $3 a day which was charged in some situations. It is inferred that the $55 charged to car owners was intended as a fee to compensate defendants for their services, since no additional charge for fees or expenses was ever made by defendants upon the lien claimant and, in this sense, the services rendered defendants did not cost a garagekeeper anything.*fn2
Defendants during times set forth in the indictment were not constables. At one time prior to October 1970 Sirimarco had been a duly appointed constable, but Thyfault had never held that office. Yet defendants frequently represented or held themselves out to be constables. As noted they used advertising materials and signs using the term "constables." They also indicated to garagemen who solicited their services that they were constables. This was used to secure business and was designed to convey the impression that their enforcement of liens would be particularly effective and efficient. With respect to car owners whose vehicle had been seized it was suggested unmistakenly in most cases that they were dealing with "constables" who were knowledgeable and vested with authority to enforce such claims and collect all moneys demanded. This ploy was to stifle resistance on the part of the car owners and to impel them to pay all sums demanded without further remonstrations or protests.
Thirteen counts of the indictment charge Thyfault, and another separate count charges Sirimarco, with the crime of impersonating a public officer, contrary to N.J.S.A. 2A:135-10. That statute provides that "[a]ny person who, without authority, exercises the functions of, or holds himself out to anyone as, an officer or employee of the state or any agency or political subdivision thereof, not so being, is guilty of a misdemeanor." It has been contended that a "constable" is not an officer or employee within the intendment of this criminal statute.
N.J.S.A. 40:41-34 et seq. provided for the office of constable.*fn3 Pursuant thereto persons ...