On appeal from the Superior Court, Law Division, Middlesex County.
Conford and Pressler. The opinion of the court was delivered by Pressler, J.A.D.
[164 NJSuper Page 332] Defendant Craig King was convicted by a jury of a charge of larceny of property having a "price
or value" in excess of $200, a misdemeanor pursuant to N.J.S.A. 2A:119-2. His appeal from the conviction and from the denial of his subsequent motion for a new trial is predicated on his contention that the State's proofs were insufficient to support a finding by the jury that the value of the stolen property exceeded $200. He also asserts error in the judge's instruction to the jury concerning value and in the judge's refusal to issue a bench warrant to compel the appearance of a witness who refused to comply with a subpoena to testify for the defense. We regard the latter contention as having sufficient merit to warrant reversal of the conviction.
The pertinent factual background is simple and undisputed. The total import of the State's proofs was that defendant had entered a jewelry store in New Brunswick, asked to see a digital Wittnauer watch, pocketed it and ran. As he was being chased by a store clerk, he was apprehended by a police officer who was coincidentally on the scene and who extracted the watch from defendant's pocket. The watch bore a tag denoting a sales price of $295.00. The sole proof offered by the State regarding value was the testimony of both the clerk and the police officer, the only State's witnesses, as to the fact of the price tag. Defendant did not undertake to dispute the theft. Indeed, in her opening statement, defense counsel advised the jury that "Mr. King concedes that he took the watch. He admits that. That is not going to be a question for this jury." The defense rather was based on the theory that the value of the watch did not exceed $200 and hence that the theft was only a disorderly persons offense pursuant to N.J.S.A. 2A:170-30.1, which so categorizes larceny of property having a value of $200 or less. In factual support of that theory on his own case, defendant called an investigator who testified that some 15 months after the theft, the price of a watch identical to that stolen by defendant in the same store from which he stole it had dropped to $189. On the State's motion this testimony was stricken on the ground that it related to value
at a time too remote to be probative of value as of the date of the theft. That ruling is not here complained of.
Defendant's final attempt to establish a value less than $200 was to serve a subpoena on the store owner, a Mr. Littman, with the intention of eliciting from him proof of the wholesale value of the watch on the date of the theft. When Mr. Littman failed to appear, defense counsel requested the judge to issue a bench warrant for his arrest. The judge's response was as follows:
On the following day, the prosecutor reported that Mr. Littman refused to honor the subpoena voluntarily. At that point defense counsel repeated her request for an arrest warrant. The judge, however, this time denied the request explaining that since wholesale value of the watch was the only testimony sought from Mr. Littman and since that value was immaterial to the issue of value on the date of the theft, defendant could not be prejudiced by Mr. Littman's non-appearance. Thus the only proof of value which the jury had before it was the retail price of the watch on the date of the theft as evidenced by the price tag.
Defendant's first contention, as we have noted, is that evidence of a retail price alone is not adequate evidence of value for purposes of proving the statutory misdemeanor offense. We disagree. The language used by the statute in defining the offense is "price or value of such property." This phrase means fair market value as that concept is commonly understood and subject to determination as in civil cases where value is in issue. See, e.g., State v. Romero , 95 N.J. Super. 482
(App. Div. 1967). The question before us is the extent to which, if at all, the proved fact of retail price is equatable with the fair market value of goods offered for sale in and stolen from a retail sales establishment. We agree with State v. Hill , 153 N.J. Super. 558 (App. Div. 1977), in its indication that in this context, fair market value means fair retail price and hence that the sales price is probative of although not conclusive proof of "price or value" within the statutory intendment. That conclusion accords with the weight of authority. See, e.g., Herman v. United States , 289 F.2d 362, 366 (5 Cir. 1961); cert. den. 368 U.S. 897, 82 S. Ct. 174, 7 L. Ed. 2d 93 (1961); State v. Randle , 2 Ariz. App. 569, 410 P. 2d 687, 688-89 (Ct. App. 1966); People v. Cook , 233 Cal. App. 2d 435, 43 Cal. Rptr. 646, 648 (D. Ct. App. 1965); Maisel v. People , 166 Colo. 161, 442 P. 2d 399, 401 (Sup. Ct. 1968); Lauder v. State , 233 Md. 142, 195 A.2d 610, 611 (Ct. App. 1963); State v. McDonald , 251 N.W. 2d 705, 707 (Minn. Sup. Ct. 1977); People v. Irrizari , 5 N.Y. 2d 142, 146, 182 N.Y.S. 2d 361, 364, 156 N.E. 2d 69, 71 (Ct. App. 1959). The rationale supporting retail value as an appropriate measure of fair market value in store-theft situations has been cogently expressed in People v. Irrizari , as follows:
While cost of replacement, or value in the wholesale market, is an item to be reckoned with in fixing value in the retail market, it is obvious that neither cost nor wholesale value may be adopted as the appropriate measure where the larceny is from a department store. To accept wholesale value in such a case would be to ignore the facts of economic life. Stated very simply, it is the retailer's function in our economy to move goods to the consuming public and, in the process, the market value of the goods is unquestionably enhanced. In addition, the retailer expends money on various services -- including advertising, promoting, display and packaging -- in order to increase the interest of the public and make it more willing to ...