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State v. Jovanovic

Decided: June 5, 1980.

STATE OF NEW JERSEY, PLAINTIFF,
v.
RADOSAW JOVANOVIC, DEFENDANT



Coleman, Marzulli and Yanoff. The opinion of the court was delivered by Coleman, J.s.c.

Coleman

Defendant was convicted of the common law offense of solicitation to commit arson in violation of N.J.S.A. 2A:85-1. He was sentenced to 360 days to the Monmouth County Correctional Institution on May 26, 1978. The question before us is whether criminal solicitation has been abolished by the New Jersey Code of Criminal Justice.

The facts in this case reveal the following: On June 4, 1977 defendant met with Joseph P. Getsinger, a State Police Officer, who was posing as a torch for hire. Defendant had asked Larry August, a repairman, to find an arsonist to burn his building. August contacted the State Police. The first meeting between defendant and the detective occurred on June 4, 1977, across the street from a building owned by defendant. The taped conversation revealed that defendant said he was having financial problems with the building and expressed the desire to be relieved of the building's burden. He indicated the building was

about to be foreclosed and that if he was unable to sell it, he wanted to burn it as soon as he obtained $200,000 insurance on the building. Defendant and the detective inspected the layout of the building to see how best to facilitate the arson. He assured the detective the tenants in possession would be safe because of the manner of construction of the building. Defendant also indicated he did not think the Fire Department would interfere. The detective was given defendant's home phone number for future contacts. The detective was to receive $10,000 for the fire. The fire was to be started a few weeks after the insurance coverage had been obtained in order to minimize suspicion. The discussion contemplated a $1,500 down-payment by defendant to the detective at some future date yet to be arranged. Defendant was arrested and charged with the instant offense before he obtained the insurance, sold the building or made the down-payment to the detective.

Defendant contends that the offense of criminal solicitation has been abolished by N.J.S.A. 2C:1-1 et seq. The State contends the congruent offense for criminal solicitation is attempt or conspiracy. 2C did not enact an offense called criminal solicitation. The Panel must, therefore, decide whether there is such a crime under the 2C scheme.

The offense of criminal attempt is found in N.J.S.A. 2C:5-1. The pertinent section of the statute provides:

a. Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (1) . . . (2) . . . (3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

b. Conduct which may be held substantial step under subsection a. (3). Conduct shall not be held to constitute a substantial step under subsection a. (3) of this section unless it is strongly corroborative of the actor's criminal purpose.

c. Conduct designed to aid another in commission of a crime. A person who engages in conduct designed to aid another to commit a crime which would establish his complicity under section 2C:2-6 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.

The 1971 proposed Penal Code did not specifically enumerate criminal solicitation as a crime. N.J.S.A. 2C:5-1 b. as enacted is

identical to the 1971 proposed Penal Code except that it does not ...


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