On appeal from the Superior Court, Law Division, Passaic County.
Michels, Pressler and Bilder. The opinion of the court was delivered by Michels, J.A.D.
Pursuant to leave of this court, defendant Philip Van Landuyt appeals from an order of the Law Division denying his motion to dismiss an indictment charging him with larceny of a motor vehicle and its contents on the ground that prosecution thereunder would violate the constitutional prohibition against double jeopardy.
On November 24, 1976 defendant was arrested by the Passaic County Park Police while in the possession of a motor vehicle owned by another. He was charged with receiving a stolen motor vehicle, in violation of N.J.S.A. 2A:139-3. The owner of the motor vehicle also charged defendant in a complaint filed in the Wayne Township Municipal Court with operating the motor vehicle without his permission, in violation of N.J.S.A. 39:4-48, which provides:
No person shall operate or use any motor vehicle without the permission of the owner. Any person violating this section shall be fined not less than one hundred dollars.
On January 3, 1977 defendant pleaded guilty to the motor vehicle violation in the municipal court and was fined $100 plus costs. Thereafter on May 2, 1977 the Passaic County grand jury returned a "no bill" on the charge against defendant for receiving stolen property but a true bill on the charge of theft of the motor vehicle and its contents, in violation of N.J.S.A. 2A:119-2, which, in pertinent part, provides:
a. Steals any money, goods, chattels or other personal property of another;
Is guilty of a misdemeanor, if the price or value of such property is in excess of $200.00 and under $500.00, and if the price or value thereof be $500.00 or over such person is guilty of a high misdemeanor.
Defendant pleaded not guilty and immediately moved to dismiss the indictment, asserting the bar of double jeopardy by virtue of his prior guilty plea and fine for the motor vehicle violation. Judge Joelson in the Law Division, relying on State v. Tamburro , 137 N.J. Super. 51 (App. Div. 1975), held that the criminal charge was not barred by double jeopardy and denied the motion. We agree and affirm.
The Double Jeopardy Clause of the Fifth Amendment, enforceable against the states through the Fourteenth Amendment of the United States Constitution, provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const., Amend. V; Benton v. Maryland , 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); North Carolina v. Pearce , 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); Ashe v. Swenson , 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); State v. Gregory , 66 N.J. 510, 513-514 (1975). The New Jersey Constitution in narrower language contains a similar prohibition. N.J. Const. (1947), Art. I, par. 11. See also, State v. Currie , 41 N.J. 531, 535-536 (1964); State v. Williams , 30 N.J. 105, 122 (1959); State v. Labato , 7 N.J. 137, 143 (1951). The guarantee against double jeopardy "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce , 395 U.S. at 717, 89 S. Ct. at 2076. The protection afforded by the prohibition against ...