On appeal from Superior Court, Law Division, Union County.
Crane, Bischoff and Milmed.
[170 NJSuper Page 293] Defendant was convicted of conspiracy to distribute a controlled dangerous substance and to commit larceny and embezzlement. He was also convicted of larceny of property valued at over $200. On appeal he contends: (1) it was error to deny his motion for judgments of acquittal; (2) it was error to deny his
new trial motion because the verdict was against the weight of the evidence, and (3) it was plain error to fail to dismiss the larceny charge because the property defendant was accused of taking was turned over to him with the knowledge and consent of its owner by prearrangement with the police.
The first two issues are so clearly meritless as to require no discussion. R. 2:11-3(e)(2). The last one, the subject of conflicting decisions elsewhere, has not previously been decided in any reported case in this jurisdiction.
In the present case the evidence would have allowed the jury to conclude that Larry Steel, a coconspirator, approached Donald Crowe, an employee of Rickel's Department Store. Steel offered to exchange drugs for store merchandise. Unknown to the would-be thief, the store employee was an undercover investigator employed by the store. He reported the incident to his supervisor and the police were called.
On the day of the planned theft Crowe, the store employee, and his supervisor gathered together the merchandise that Steel, the coconspirator, had asked for. While police officers watched, the goods were turned over to Steel, defendant and another man. The jury could have believed that defendant had been present during a prior conversation in the store with the undercover investigator and that he therefore had participated in the planning and execution of the crime.
After the goods were turned over to the three men and loaded into their truck, defendant drove away. Before he could leave Rickel's lot he was apprehended and arrested. Defendant contends that since the owner voluntarily surrendered custody and possession of the merchandise, trespass -- an essential element of the crime of larceny -- was lacking and he is entitled to a judgment dismissing the larceny charge.
Larceny is "the wrongful or fraudulent taking and carrying away by any person of the personal property of another, from any place, with a fraudulent intent to deprive the owner of his
property." State v. Leicht , 124 N.J. Super. 127, 131 (App.Div.1973). It is fundamental that the property must be taken without the consent of the owner. Id. at 133. Ordinarily, larceny is not committed where property is taken "with the full knowledge and consent of the owner or his authorized servant or agent, however guilty may be the taker's intent." 50 Am.Jur. 2d, Larceny , § 23 at 175.
Nevertheless, it is sometimes difficult to determine whether the owner has consented to the taking. The difficulties have been summarized in this way:
Courts in some jurisdictions have drawn rather fine distinctions where owners of property have given it over to a would-be thief with the purpose of apprehending him. In Annotation, "Larceny: Entrapment or Consent," 10 A.L.R. 3d 1121, ...