Baime, J.s.c. (temporarily assigned).
This case presents novel questions pertaining to the construction and application of N.J.S.A. 2C:20-7(b)(2). That statute creates a presumption of guilty knowledge in a prosecution for knowingly receiving stolen property where the accused has been involved in a similar transaction within the year preceding the charge set forth in the indictment. More specifically, the requisite mental state is "presumed" where the accused "[h]as received stolen property in another transaction within the year preceding" the alleged crime. N.J.S.A. 2C:20-7(b)(2). The initial question presented concerns the evidentiary effect of the presumption set forth in the statute. Ancillary questions pertain to the burden and standard of proof necessary to establish the predicate to the statutory presumption and the procedure to be employed in that regard. Also at issue is whether the State may introduce evidence of a prior disorderly persons conviction to establish that the defendant in fact received stolen property within the year.
As noted, these questions are of first impression. This opinion is thus necessary despite the fact that these issues have arisen within the context of an on-going criminal trial. Specifically, I conclude that the statute creates a permissive inference and not a presumption of guilty knowledge upon proof of defendant's
prior receipt of stolen property. Further, a hearing should be conducted out of the presence of the jury pursuant to Evid. R. 8 to determine whether the statutory presumption is applicable. At the hearing it is incumbent upon the State to prove the prior receipt of stolen property by clear and convincing evidence. In the event the evidence is ultimately admitted, the jury should be instructed as to its limited probative effect. Finally, I find that evidence of a prior disorderly persons conviction does not satisfy the State's burden of establishing the prior offense and may not be admitted.
Only recently the United States Supreme Court had occasion to reiterate that the "presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice." Taylor v. Kentucky , 436 U.S. 478, 479, 98 S. Ct. 1930, 1931, 56 L. Ed. 2d 468 (1978). See, also, Estelle v. Williams , 425 U.S. 501, 503, 96 S. Ct. 1691, 1692, 48 L. Ed. 2d 126 (1976). It is thus axiomatic that the State bears the burden of proving each essential element of an offense beyond a reasonable doubt. State v. Humphreys , 54 N.J. 406, 414 (1969). Although the burden of proof may be shifted to the accused with respect to certain affirmative defenses, see e.g. State v. Molnar , 81 N.J. 475, 491 (1980) and State v. Toscano , 74 N.J. 421, 442 (1977), the State must nonetheless prove its case beyond a reasonable doubt. Patterson v. New York , 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); Mullaney v. Wilbur , 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). Quite plainly, it is not within the province of the Legislature to declare an individual presumptively guilty.*fn1 McFarland v.
American Sugar Refining Co. , 241 U.S. 79, 86, 36 S. Ct. 498, 501, 60 L. Ed. 2d 899 (1916). The Legislature cannot validly command that the accused disprove an essential element of the offense charged against him. Cf. Tot v. United States , 319 U.S. 463, 469, 63 S. Ct. 1241, 1245, 87 L. Ed. 2d 1519 (1943). See, also, Speiser v. Randall , 357 U.S. 513, 523-525, 1340-1341, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958).
To that extent, the presumption set forth in N.J.S.A. 2C:20-7(b)(2) cannot be read to place upon a defendant the burden of establishing an innocent state of mind upon receiving the stolen property. Although the statute purports to create a presumption of guilty knowledge, it must be construed as establishing a mere permissive inference. It is well settled that a presumption is compulsory and prima facie establishes the existence of a fact, while an inference is a permissive deduction which the jury may but need not entertain. State v. Corby , 28 N.J. 106-114 (1958). Jury instructions employing the term "presumption" instead of describing an inference have been rejected, since they shift the burden of proof from the State to the defendant and impinge upon the deliberative function of the trier of fact. State v. Humphreys, supra at 415. United States v. Allegrucci , 258 F.2d 70, 73, 74 (3 Cir. 1958); Barfield v. United States , 229 F.2d 936, 939-940 (4 Cir. 1956). Therefore, the statute must be construed as permitting an inference of guilty knowledge to be drawn from evidence that the defendant received stolen property within the year preceding the charge alleged in the indictment.
In determining whether the statutory presumption is applicable, a hearing should be conducted out of the presence of the jury pursuant to Evid. R. 8. Although research discloses no published decision directly on point, strong public policy considerations militate that the State bear the burden of ...