Greenberg, J.c.c., Temporarily Assigned.
Under one of the counts in the indictment in this case defendant Robert Gene Thomas was convicted by a jury of receiving stolen property. N.J.S.A. 2A:139-1. The offense occurred on January 4, 1973. He was charged with receiving and having in his possession a wallet, two car keys and some money. There was introduced no evidence of the value of the wallet and car keys, and, in any event, these items would undoubtedly have been of inconsequential value. Defendant Thomas was arrested in actual possession of $72 in stolen money and his codefendant was arrested in actual possession of $73 in stolen money. Therefore, even regarding Thomas as having been in legal possession of all of the money, the value of all the property that he received was $145.
Defendant moves for a judgment of acquittal on the ground that he was not convicted of any offense within the purview of N.J.S.A. 2A:139-1, since that section, as amended effective September 27, 1972, applies only where the value of the property in question is in excess of $200. The same amending act constitutes the receiving of property having a value of $200 or less a violation of the Disorderly Persons Act. N.J.S.A. 2A:170-41.1.
There is no doubt that defendant is not guilty of a violation of N.J.S.A. 2A:139-1. The question is whether the jury verdict is to be regarded as a conviction under the Disorderly Persons Act and, if so, whether this court is to impose sentence thereunder.
In the case of State v. McGrath , 17 N.J. 41 (1954), the Supreme Court held that the count of an indictment charging simple assault and battery should have been dismissed. Defendant had also been indicted for atrocious assault and battery. The court held that in view of the Disorderly Persons Act the offense of simple assault and battery was within
the sole jurisdiction of the municipal court. In the course of its opinion the court emphasized the problems which it felt would arise if in the ordinary case a jury could convict a defendant of any lesser charge than that specified in the indictment, indicating that instructions to the jury would be required as to all offenses for which a defendant could conceivably be convicted; that if such instructions were to be given, then counsel would have the right in their opening statements to refer to all lesser offenses and to introduce evidence relevant to the same, resulting, in the view of the court, in "the utter confusion of the jury." Id. , at 46. McGrath was followed by the court in State v. Currie , 41 N.J. 531 (1964), but in State v. Briley , 53 N.J. 498 (1969), the court stated in a footnote (at 504)
We need not decide whether the Superior Court, to which all indictments are returnable, has jurisdiction to hear the disorderly-person offense of assault and battery as a lesser included offense when a defendant is on trial for atrocious assault and battery, nor, assuming such jurisdiction does exist, need we decide at this time what, if any, procedural steps might be necessary to facilitate complete disposition of both offenses. * * *
Thus, the latest intimation of the Supreme Court is that the question is still open.
The problems noted by the court in State v. McGrath, supra , as complicating factors, do not exist in the present case. There are no differences between the indictable offense of receiving stolen property and the disorderly persons offense, other than the value of the property. Indeed, the Legislature patterned the disorderly persons offense so closely after the indictable offense that even the reference to a jury was included in the disorderly persons offense. See N.J.S.A. 2A:170-41.1. This reference may have been in error since, of course, the right to jury trial would not exist except with respect to an indictable offense. In any event, there will ordinarily have to be made some determination of value in the trial of an indictment for receiving stolen
property. The jury will have to determine that the value is in excess of $200 in order to convict a defendant of the indictable offense. Obviously, if the jury determines that the value is not in excess of $200, then a determination has been made of all that is necessary to convict the defendant of the disorderly persons offense. No problem exists with respect to instructing the jury as to other offenses.
The alternatives to a determination that defendant in this case has been convicted of the disorderly persons offense of receiving stolen property would be to acquit him, with no further action to be taken, or to acquit him with the matter to be referred to the municipal court for prosecution. Neither alternative would seem to serve the ends of justice. It is difficult to conceive of why defendant should avoid any conviction. He has, after all, been found guilty by a jury of acts which constitute a disorderly persons offense. While such a charge would not ordinarily be tried by a jury, this would not seem to give defendant ground for complaint. A defendant tried for an indictable offense does not have his constitutional rights infringed when he is tried by a jury, even though he has unilaterally attempted to waive a jury trial, State v. Belton , 60 N.J. 103 (1972), and there certainly would seem to be no reason why a nonindictable offense could not be tried by jury. Defendant argues that he should be acquitted because the State made an "election" to try ...