Marzulli, Neagle and McGann.
This motion raises the following interesting question: Has the crime of entering a public place with intent to steal (formerly encompassed by N.J.S.A. 2A:94-1) been eliminated by the adoption of the New Jersey Code of Criminal Justice? We hold that it has.
Richard Schenck was charged in a two-count indictment with entering with intent to steal (N.J.S.A. 2A:94-1) and robbery (N.J.S.A. 2A:141-1) as the result of his activity at the Hunterdon County National Bank on October 14, 1978. By its verdict of guilty on both counts a jury found that he had entered the bank at 2:30 p.m. and walked up to a teller and presented her with a note reading, "Give me your money. I have a gun." She gave him $2,828. He walked out with it and was shortly thereafter apprehended and charged. He appealed the conviction and sentence of five to seven years on the first count and a consecutive seven to ten years on the second. Both conviction and sentence were upheld. His subsequent motion to the trial court for reduction of the sentence was denied.
Pursuant to N.J.S.A. 2C:1-1(d)(2), Schenck moves this Panel to review his sentence and to impose a new sentence under the Code. He argues that we have jurisdiction to do so because, in the language of the statute, he is a "person who is under sentence of imprisonment on the effective date of the code for an offense committed prior to the effective date which has been eliminated by the code. . . ."
N.J.S.A. 2A:94-1 provided:
Any person who willfully or maliciously breaks and enters, or enters without breaking, any building, structure, room, ship, vessel, car, vehicle or airplane, with
intent to kill, kidnap, rob, steal, commit rape, mayhem or battery, is guilty of a high misdemeanor.
That statute was repealed by enactment of the Code. N.J.S.A. 2C:98-2. N.J.S.A. 2C:1-5(a) provides: "Common law crimes are abolished and no conduct constitutes an offense unless the offense is defined by this code or another statute of this State." The Code offense conceptually closest to N.J.S.A. 2A:94-1 is burglary (N.J.S.A. 2C:18-2), defined in the following fashion:
A person is guilty of burglary, if, with purpose to commit an offense therein he:
(1) Enters a structure, or a separately secured or occupied portion thereof, unless the structure was at the time open to the public or the actor is licensed or privileged to enter; or
(2) Surreptitiously remains in a structure or a separately secured or occupied portion thereof knowing that he is not ...