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State in Interest of L.L.A.

February 21, 1980

STATE OF NEW JERSEY IN THE INTEREST OF L.L.A., A JUVENILE


Romei, J.J.D.R.C.

Romei

[178 NJSuper Page 557] L.L.A., a juvenile, is charged with juvenile delinquency predicated upon the alleged unlawful possession of a stolen 1979 Honda motorbike, in violation of N.J.S.A. 2A:170-41.1.*fn1

The trial commenced after September 1, 1979. Evidence was adduced by the State which tended to establish that the motorbike was stolen on April 17, 1979 and that the juvenile was in possession of the motor attached to the bike within two days. No testimony was produced relative to knowledge. Instead, the prosecutor relied upon the statutory presumption set forth in N.J.S.A. 2A:170-41.1 which provides:

Possession of such property within 1 year from the date of such stealing, robbery or unlawful or fraudulent obtaining, shall be deemed sufficient evidence to authorize conviction, unless the accused show to the satisfaction of the jury . . . [emphasis added]

either that he received the property as a gift; that he paid the fair and reasonable value; that reasonable inquiries were made to determine that the seller was in an established business; that simultaneously with or before the receipt or sale the transaction was reported to the police or that the police approved receipt or purchase of the property from a minor. Nonetheless, a defendant is not limited to the statutory defenses. He may, in fact, assert any defense. State v. Di Rienzo , 53 N.J. 360, 380 (1969); State v. Laster , 69 N.J. Super. 504, 510 (App.Div.1961).

Counsel for the juvenile moved for the entry of a judgment of acquittal pursuant to R. 3:18-1. He readily conceded for the purposes of the motion that sufficient evidence had been adduced to establish that the motorbike had been stolen and that the juvenile was found in possession of the motor bike. I find that two elements of the offense, namely, theft and possession, were established in accordance with the applicable standards governing such a motion as set forth in State v. Reyes , 50 N.J. 454, 458-459 (1967). Defense counsel contended that the motion for judgment of acquittal must be granted since the statutory presumption relative to knowledge is a procedural rule of evidence which has been superseded by the provisions of the new Code of Criminal Justice. The State, in turn, argued that the presumption "should be deemed part of the substantive criminal law" and not "procedural"; the "procedural" provisions of the Code are "not required to be applied to pending matters" and, alternatively, "the common law presumption [inference] of

guilty knowledge arising from recent and unexplained possession" should be applied to the factual situation in this case.

The questions posed are whether the statutory presumption relative to knowledge that the goods are stolen is procedural; and, if so, must a judgment of acquittal be granted in a case involving the receipt of stolen property commenced after September 1, 1979 when the State relies on the presumption to establish a prima facie case?

The crime of buying or receiving stolen property requires proof of three elements to establish guilt: (1) the property was stolen, (2) the accused received it and (3) at the time he received it he knew it was stolen. State v. Laster, supra; State v. Kimbrough , 109 N.J. Super. 57 (App.Div.1970).

N.J.S.A. 2A:170-41.1 and N.J.S.A. 2A:139-1 (applicable to buying or receiving stolen property valued in excess of $200) both contain the statutory presumption above set forth which permits the jury to infer guilty knowledge from the mere fact of possession. This statutory presumption was first enacted in L. 1928, c. 187 (R.S. 2:141-1), the predecessor statute to N.J.S.A. 2A:139-1. It eliminated "the necessity of showing guilty knowledge by direct proof and in its place substitutes proof of possession from which guilty knowledge may be inferred." State v. Laster, supra , 69 N.J. Super. at 507.

That the statutory presumption is an evidentiary rule is well settled. Our Supreme Court in State v. Di Rienzo, supra , explained the function of this statutory evidentiary rule as follows:

The statutory presumption does not shift the burden of proof. It "is merely an evidentiary rule ...


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