Matthews, Lora and Morgan.
[137 NJSuper Page 14] Defendant Michael Palumbo (who did not participate in this appeal) was a former assistant vice-president of Vornado, Inc., the parent organization of Two Guys From Harrison. Defendant Joseph Patiro, respondent herein, was an independent trucker who also engaged in the junk business. On June 27, 1973 merchandise, in the form of
clothing, was unlawfully taken from a warehouse in the Vornado complex in which Palumbo worked, under the direction of Palumbo, placed on Patiro's truck and removed by Patiro from the warehouse. Evidence from a security guard, who testified from personal observations, indicated that early on that morning Patiro and Palumbo together entered a screened security cage in the warehouse in which the merchandise was kept. Shortly thereafter Palumbo alone returned with another employee whom he directed to pack certain merchandise in cartons. The cartons were placed on Patiro's truck and were discovered in the course of a security check as the truck was leaving the Vornado grounds, covered by a false bill of lading. Palumbo had no authority to sell the goods in question.
Palumbo was indicted for larceny (N.J.S.A. 2A:119-2), conspiracy to commit larceny (N.J.S.A. 2A:98-1 and N.J.S.A. 2A:119-2) and for embezzlement (N.J.S.A. 2A:102-5). Defendant Patiro was indicted for larceny, conspiracy to commit larceny, and for receiving stolen goods (N.J.S.A. 2A:139-1). Thus, both defendants were charged with larceny and with conspiracy to commit larceny. The only difference between the charges made with respect to the two defendants is that Palumbo was charged with embezzlement and Patiro with receiving stolen goods. Following a seven-day joint trial and rendition of the judge's charge concerning all of the offenses referred to in the indictment and their relationship to each other, the jury returned with two questions, only one of which is pertinent to the issues raised on this appeal. That question is reflected in the record as follows:
Can a person be guilty of larceny relative to goods he knows to be embezzled by another?
The judge answered this question in the affirmative and the jury subsequently returned a verdict finding Palumbo guilty of embezzlement and conspiracy to commit larceny, and
finding Patiro guilty of larceny and conspiracy to commit larceny. Palumbo was acquitted of larceny and Patiro was acquitted of receiving stolen goods.
Thereafter, on a motion for a new trial interposed by both defendants, the trial judge vacated the verdict finding Palumbo guilty of conspiracy to commit larceny and both verdicts finding Patiro guilty of larceny and conspiracy to commit larceny. It permitted the verdict finding Palumbo guilty of embezzlement to stand. The reason given for this action was the conclusion reached by the trial judge that the answer given to the jury question quoted above was incorrect and that one could not be a larcenist with respect to goods embezzled by another. Moreover, with respect to the vacated verdict as to Patiro's guilt of conspiring to commit larceny, the trial judge took the position that since a conspiracy required the participation of two persons, and since one of the two, Palumbo, could not have been found guilty of larceny and therefore conspiracy to commit larceny, Patiro could not be found guilty of conspiring to commit that offense. The State's application for leave to appeal from the order of the trial court granting a new trial on these grounds was granted.
At the heart of the controversy before this court is the effect to be accorded the conceded distinction between the crimes of larceny and embezzlement where two persons are charged with a theft, only one of whom could be held embezzler. Embezzlement is a crime of statutory creation, intended to "fill some gap in the law of larceny," Perkins on Criminal Law (2 ed. 1969), 289, and was designed to extend the crime of larceny "to a number of acts which were removed from the limits of criminality by a line of subtle and unsubstantial distinctions." State v. Lyon , 45 N.J.L. 272, 275 (Sup. Ct. 1883). This "gap" resulted from judicial determination that the crime of larceny, designed to punish trespassory thefts, did not encompass theft accomplished by a nontrespassory taking, as when the thief's original
possession was lawful. In such cases, the subsequent conversion of the property, rightfully possessed, to the thief's own use was not considered larceny. Id. See Commonwealth v. Ryan , 155 Mass. 523, 30 N.E. 364 (Sup. Jud. Ct. 1892). A theft is larceny if the means of acquiring the property is trespass; it is embezzlement if the means of acquisition is by breach of a trust relationship. Schlosser , 1 Criminal Laws of New Jersey 3d, § 42.3 at 480 (1970).
Applying these concepts to the facts of the present case, it is clear that the evidence supports the verdicts returned. Palumbo was an executive officer of Vornado, the owner of the goods, and his possession of them was acquired through lawful means. His cooperation with Patiro in their theft could not therefore be regarded as larceny. Cf. State v. Leicht , 124 N.J. Super. 127, 132-133 (App. Div. 1973). His actions with respect to the theft of the merchandise could only, in contemplation of law, be regarded as an embezzlement. Patiro, of course, stood in no trust relationship with Vornado. He was not its employee or agent. His theft of the merchandise could not therefore be regarded as an embezzlement, but as larceny. The form of the verdict clearly conveys the jury's findings of facts. They concluded that both Palumbo and Patiro cooperated in the theft of the merchandise. It was that finding which required their convicting Palumbo of embezzlement, and Patiro of larceny. It was also this finding ...