By filing a motion to dismiss the indictment defendant presents the court with this interesting question: Is the defense of impossibility available in New Jersey to the crime of attempt?
A recitation of the history of the case is necessary to provide the background out of which this issue has arisen. Sometime in the three-week period before the middle of June 1975 the residence of one Henry Barnard in Hunterdon County was burglarized. Included in the list of stolen property were two Chinese rose medallion garden seats valued at some $2,000. Shortly thereafter one Elaine Miskis was arrested and charged with, among other offenses, the Barnard burglary,
and the two Chinese garden seats were recovered by the police. During the course of this investigation Miss Miskis told members of the Somerset County Prosecutor's office that she had previously sold stolen articles to defendant Tropiano, who operates a jewelry store in Somerville. Thereafter Miss Miskis, along with a Somerset County Prosecutor's investigator who was posing as an antique dealer, went to defendant's store and had several conversations about selling these "hot-stolen" garden seats, with the result that on July 8, 1975 defendant went to the Miskis residence in Hunterdon County, bought the garden seats from her for $100 and with the help of the bogus dealer loaded the seats into his vehicle. Thereupon the investigator advised defendant of his true identity and placed him under arrest for receiving stolen property.
The present indictment represents the third endeavor by the Hunterdon County Prosecutor to bring defendant to trial, based on the foregoing factual situation. Defendant was first indicted on a charge of receiving stolen property, in violation of N.J.S.A. 2A:139-1. This indictment was dismissed by this court, on defendant's motion, relying primarily on People v. Rojas , 55 Cal. 2d 252, 10 Cal. Rptr. 465, 358 P. 2d 921 (Sup. Ct. 1961); U.S. v. Cawley , 255 F.2d 338 (3rd Cir. 1958); and U.S. v. Cohen , 274 F. 596 (3 Cir. 1921). In Cohen , the Third Circuit stated:
When the actual, physical possession of stolen property has been recovered by the owner or his agent, its character as stolen property is lost, and the subsequent delivery of the property by the owner or agent to a particeps crimins , for the purpose of entrapping him as the receiver of stolen goods, does not establish the crime, for in a legal sense he does not receive stolen property.
Thereafter the matter was again presented to the Hunterdon County grand jury which returned Indictment 106-J-76 charging defendant Tropiano and Elaine Miskis with the crime of conspiracy to receive stolen property, and Indictment 105-J-76, now under attack, charging Tropiano with attempt
to receive stolen property, contrary to N.J.S. 2A:85-5 and 2A:139-1.
Thereafter the prosecutor on his own motion, moved to dismiss the conspiracy indictment on the ground that because the acts of Miss Miskis were lawful, the crime of conspiracy was not committed. Not surprisingly, this motion was not opposed by defendant and Indictment 105-J-76 was dismissed by this court, which brings us to a consideration of the issue raised by the third indictment.
The elements of the offense of "attempt to commit a crime" N.J.S.A. 2A:85-5 are: (1) the intent to commit the crime; (2) performance of some act toward commission of the crime, and (3) failure to complete the commission of the crime. State v. Swan , 131 N.J.L. 67, 69 (E. & A. 1943).
Defendant's theory in support of his motion to dismiss the indictment is this: the court's ruling in the original indictment charging receiving stolen property is "the law of the case" and consequently the finding by the court that, at the time of this transaction between defendant and Miskis, the property was not "stolen property," precludes defendant from being charged with the crime of ...