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State v. Insabella

Decided: July 25, 1983.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
HARRY INSABELLA, DEFENDANT-RESPONDENT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. HARRY INSABELLA, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Somerset County.

Matthews, Antell and Francis.

Per Curiam

Defendant was charged in two complaints, SI 3444 and SI 3445, filed in the Franklin Township Municipal Court, with meter tampering. N.J.S.A. 2C:20-8(c) and 2C:20-8(d). Each complaint contained two counts and was filed at the behest of Public Service Electric and Gas Company (PSE & G).

Following the State's case on complaint No. SI 3445, the municipal judge denied defendant's motion to dismiss and then proceeded to find defendant guilty of the first count, merging the second count into the first.

Defendant then pleaded guilty to count one of complaint No. SI 3444.

Thereafter, defendant renewed his motion to dismiss complaint No. SI 3445 which was again denied. The judge then sentenced defendant to consecutive six month suspended terms in jail and levied a $500 fine on each complaint. A total of $5,000 restitution on both matters was ordered to be paid at the rate of $200 a month, as a condition of a two year term of unsupervised probation. Denying an application for a stay, the

judge ordered that he would suspend the balance of the fine if $600 was paid to the court on March 26, 1982.

An appeal was taken to the Law Division where Judge Meredith found defendant not guilty on complaint No. SI 3445.

On the same day Judge Meredith refused to vacate defendant's guilty plea on count one of complaint No. SI 3444, and sentenced defendant to a six month suspended jail sentence, a fine of $500 with $25 court costs, and a two year term of unsupervised probation upon the condition that restitution in the amount of $646.41 be paid.

The State appeals from the disposition of SI 3445, and defendant appeals from the refusal of the Law Division judge to vacate his guilty pleas and the sentence imposed.

During the course of this litigation, the offense charged against defendant under complaint SI 3445 changed from meter tampering (a disorderly persons offense) to a lesser included offense, or downgraded version, of the indictable crime of theft of services.

The complaint filed against defendant alleged tampering with meters and cited the statutes which make tampering a disorderly persons offense. When he entered his plea of guilty to complaint No. SI 3444 no mention was made of any other offense. Thereafter, the prosecutor described the offense as theft of services and that label was subsequently adopted by Judge Meredith.

Defendant argues that meter tampering is a different substantive offense than theft of services. Under Title 2A, meter tampering was prosecuted as a disorderly persons offense under N.J.S.A. 2A:170-63 and 2A:170-64. Receipt of services by tampering was prosecuted under the fraud statute, ...


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