This matter is before the court on a motion to dismiss the above indictment in whole or in part on the grounds that it fails in its various counts to allege offenses under the laws of the State of New Jersey or, in the alternative, that the State is precluded from proceeding against defendants under the general fraud statute, N.J.S.A. 2A:111-1, since a more specific statute, N.J.S.A. 2A:170-64, has been enacted which prohibits the specific conduct alleged in this indictment.
Defendants are among 23 persons or entities charged in a 291-count indictment presented by the state grand jury with conspiring to defraud and actually defrauding the Public Service Gas and Electric Company during various time periods from 1973 to 1976. Count 1 charges all defendants with conspiracy to defraud. Count 2 charges defendant John M. Cox alone with the unlawful possession of burglary tools, which count is not contested in this motion. Counts 3 through 291 charge defendant Cox and other defendants in various counts with actual fraud. The State contends that defendants set back the electrical meters in certain commercial establishments and thus by means of the altered meter readings, and the payment of bills which were issued by Public Service based on the altered meter readings, defrauded and cheated Public Service since the payments did not represent the true energy or value of said energy consumed by these establishments.
Defendants argue two propositions in seeking dismissal of the indictment. In the first instance they contend that the indictment fails to charge a crime under N.J.S.A. 2A:111-1. This statute reads:
Any person who, knowingly or designedly, with intent to cheat or defraud any other person, obtains any money, property, security, gain, benefit, advantage or other thing of value by means of false
promises, statements, representations, tokens, writings or pretenses, is guilty of a misdemeanor.
The essence of defendants' argument appears to be that the specific elements of N.J.S.A. 2A:111-1 cannot be satisfied by the conduct alleged in the indictment since the electricity was delivered to the commercial establishments by Public Service prior to any incident of fraud, i.e. , the tampering with the meter, and thus Public Service did not "rely" on the fraud, an essential element under N.J.S.A. 2A:111-1. This may be persuasive if one views the receipt of electricity as the sole gain or benefit to defendants in this instance. However, the gain or benefit here was not the electricity itself but the reduced bills, and thus we feel that the indictment clearly charges a violation of N.J.S.A. 2A:111-1.
The crime of cheating or defrauding by false pretenses under N.J.S.A. 2A:111-1 contains several elements. There must be a misrepresentation by a defendant. This misrepresentation must be knowing and made with the specific intent to cheat or defraud. The aggrieved party must rely on this misrepresentation in parting with his property and, finally, defendant must receive something of value as a result of the misrepresentation. See, e.g., State v. Covington , 59 N.J. 536 (1971); State v. Lemken , 136 N.J. Super. 310 (App. Div. 1974), aff'd 68 N.J. 348 (1975); State v. Thyfault , 121 N.J. Super. 487 (Law Div. 1972), aff'd 126 N.J. Super. 459 (App. Div. 1974); State v. Zwillman , 112 N.J. Super. 6 (App. Div. 1970), certif. den. 57 N.J. 603 (1971). In the present case the misrepresentation by defendants consisted of the altering or setting back of the electric meters, as alleged in the indictment, or in the aiding and abetting thereof. Intentionally or knowingly aiding and abetting the meter tampering makes one guilty as a principal even though someone else actually did the tampering. N.J.S.A. 2A:85-14; State v. Lemken, supra. That the misrepresentations were knowing and made with the specific intent to defraud is
alleged in the indictment with sufficient particularity and is a matter of proof at trial. The indictment also alleges reliance on the part of the aggrieved party, Public Service -- an essential element of the crime -- in the billing of defendants and other specified entities for amounts of electricity as indicated on the altered meters, which bills defendants paid. Thus, defendants clearly received a thing of value in the reduced bills, a saving of substantial amounts of money.
While there is no case law which specifically deals with the type of fraud alleged in this case, it cannot be inferred that N.J.S.A. 2A:111-1 was not intended to proscribe such activities as those alleged in this indictment. One cannot be blind to the realities of our society and the ever more sophisticated schemes for the purpose of defrauding and cheating others. The fact that Public Service operates on a system wherein customers are billed at regular intervals for the energy which they have actually consumed as measured by individual meters, rather than purchasing amounts in advance, does not place the scheme here outside the parameters of the conduct proscribed by N.J.S.A. 2A:111-1 for lack of reliance in parting with one's property. Certainly the regular monthly bills issued by Public Service can be considered property. They constitute a tangible value to Public Service. The dollar amounts specified within are a valuable interest belonging to the Public Service, and thus to induce Public Service to reduce this dollar amount by means of a false pretense clearly is that type of activity proscribed by N.J.S.A. 2A:111-1.
Ordinarily an indictment should not be dismissed unless its insufficiency is palpably shown. State v. McDowney , 49 N.J. 471 (1967); State v. LaFera , 35 N.J. 75 (1961). An indictment may be insufficient if it fails to charge a defendant with the commission of all the essential factual ingredients of an offense. State v. Silverstein , 41 N.J. 203 (1963); State v. Lamb , 125 N.J. Super. 209 (App. Div. 1973). In ...