Conford, Michels and Pressler. The opinion of the court was delivered by Michels, J.A.D.
Defendant appeals from his convictions for attempting to obtain and obtaining money by false pretenses, in violation of N.J.S.A. 2A:111-1, for which he was sentenced to State Prison for one to two years and fined $500.
According to the State's proofs, the Office of Weights and Measures in the Division of Consumer Affairs, New Jersey Department of Law and Public Safety (Division), investigated
a complaint involving Colonial Fuel Oil Company (Colonial). Agents from the Division rented a building adjacent to a 1,000-gallon oil storage tank. The capacity of the tank was calibrated by the agents. They filled the tank with heating oil and removed exactly 510 gallons of the oil. Then they placed an order for heating oil with Colonial, and on the same day a Colonial truck driven by defendant arrived at the building to make the delivery. Defendant also had an ownership interest in Colonial.
Inspector Keller met defendant and asked him to fill the tank, directing him to the location of the tank's intake. Defendant proceeded to make the delivery while Keller and other agents from the Division watched from various locations in and around the building. During the delivery process a change in the pitch of the sound of the truck's oil pump was detected. This change in pitch normally signalled the end of delivery. Agent Neri walked over to the truck and observed that the meter was just turning to the 543-gallon mark, and that the pump was still working, indicating that delivery was still being made. It became evident that defendant was going to make "a short delivery" because the tank could only hold an additional 510 gallons.
When the delivery procedure was finally completed, defendant informed Keller that he had delivered 798 gallons of oil and asked for $286.50 in payment. Keller paid defendant in cash and defendant gave him (Keller) a metered delivery ticket marked "paid". Defendant entered the cab of his truck and was immediately arrested. Thereafter the agents measured the tank and found that defendant had delivered only 498 gallons of oil and not the 798 gallons claimed.
Defendant first contends that the trial judge erred in denying his motions for judgment of acquittal for failure to prove that the Division's agents paid the money in reliance upon defendant's fraudulent misrepresentation as to the quantity of the oil delivered. Defendant argued that the Division's agents knew that there had been a short delivery
of oil prior to making payment. Thus, there was no reliance upon his misrepresentation and he could not be found guilty of obtaining money by false pretenses in violation of N.J.S.A. 2A:111-1.
N.J.S.A. 2A:111-1, in pertinent part, provides:
Any person who, knowingly or designedly, with intent to cheat or defraud any other person, obtains any money, * * * by means of false promises, statements, representations, tokens, writings or pretenses, is guilty of a misdemeanor.
An essential element of the crime of false pretenses is reliance by the victim upon the fraudulent misrepresentation or statement of the defendant. State v. Lemken , 136 N.J. Super. 310, 318 (App. Div. 1974), aff'd 68 N.J. 348 (1975); State v. Thyfault , 121 N.J. Super. 487, 503 (Cty. Ct. 1972), aff'd o.b. 126 N.J. Super. 459 (App. Div. 1974); State v. Zwillman , 112 N.J. Super. 6, 12 (App. Div. 1970); State v. Allen , 100 N.J. Super. 407, 409-10 (App. Div. 1968), rev'd on other grounds 53 N.J. 250 (1969); State v. Kaufman , 31 N.J. Super. 225, 229 (App. Div. 1954), mod. on other grounds 18 N.J. 75 (1955). The extent of reliance need not be great, sole or exclusive. However, it must be shown that the fraudulent misrepresentation or statement ...