On appeal from Superior Court, Law Division, Monmouth County.
Matthews, Morgan and Morton I. Greenberg.
[176 NJSuper Page 137] Defendant Velez and codefendant Hernandez were charged in a 13-count indictment with entering without breaking 12 different
vehicles on June 7, 1979 with intent to steal, in violation of N.J.S.A. 2A:94-1 (Counts 2 through 13). Hernandez was also charged with resisting arrest in violation of N.J.S.A. 2A:85-1 (count 1).
Defendant was also charged in three complaints with stealing from eight of the vehicles goods with a value of less than $200, in violation of N.J.S.A. 2A:170-30.1 (a disorderly persons offense).
Hernandez entered guilty pleas to resisting arrest and the remaining counts of the indictment against him were dismissed.
Thereafter, Velez moved to dismiss the indictment on the ground it charged a crime which is not an offense under the new Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq. The Law Division judge granted the motion finding that under the Code a person commits a burglary only if he enters a "vehicle adapted for the overnight accommodation of persons" and that "the ordinary automobile parked on the street is not adapted for the overnight accommodation of persons." He therefore concluded that "[t]he offense of breaking and entering into an automobile is no longer an offense under the Code."
The State contends that the Law Division judge erroneously held that the crime of breaking and entering an automobile not adapted for overnight accommodation of persons with intent to steal is no longer an offense under the Code. Specifically, the State urges that the offense committed constitutes attempted theft under N.J.S.A. 2C:5-1a(2) and 2C:20-3a. We agree.
N.J.S.A. 2C:1-1(c)(3) provides:
In any case pending on or initiated after the effective date of the code involving an offense committed prior to such date:
The court shall, if the offense committed is no longer an offense under the provisions of the code, dismiss such prosecution.
Defendant was charged under N.J.S.A. 2A:94-1, which ...