The thrust of this opinion is directed toward the legal distinction between volunteering false information to a law enforcement officer with purpose to hinder the apprehension, prosecution, conviction or punishment of another from the same conduct committed by one who seeks to avoid his own detection with the same consequences. See N.J.S.A. 2C:29-3, et seq.
After his apprehension and arrest in connection with auto theft, the defendant gave to the police a false name and address.*fn1 Subsequently, when confronted with information supplied by an accomplice, he provided his correct name and address. Based upon this occurrence he was indicted, inter alia, for volunteering false information to a law enforcement officer with purpose to hinder his own apprehension, prosecution, conviction or punishment in accord with N.J.S.A. 2C:29-3(b)(4). At the close of the State's case the defendant moved for the entry of a judgment of acquittal pursuant to R. 3:18-1.
This application was bottomed on the theory that the fictitious information given to the police was not voluntary but in response to a police inquiry and therefore did not constitute a violation of the statute. In support of this argument defendant relied on the recent case of State v. D'Addario, 196 N.J. Super. 392 (Law Div.1984) wherein a court of co-equal jurisdiction reasoned that the word "volunteer" in the context of N.J.S.A. 2C:29-3(a)(7) refers solely to those persons who take the initiative in coming forward with information for law enforcement officers and does not apply to those who supply false information in response to a police initiated inquiry.
Defendant's reliance on State v. D'Addario, supra, is misplaced and represents a misreading of that decision. At first blush, that argument has facial appeal since both N.J.S.A. 2C:29-3(a)(7) and 2C:29-3(b)(4) embody the same language -- "volunteers false information to a law enforcement officer." However, the distinguishing feature between these two sections is that in N.J.S.A. 2C:29-3(a)(7) the volunteering of false information to a law enforcement officer is with the purpose to hinder the apprehension, prosecution, conviction or punishment of another for an offense, while 2C:29-3(b)(4) pertains to one's own apprehension, prosecution, conviction or punishment. As to conduct in regard to another, the Final Report of the New Jersey Criminal Law Revision Commission -- Volume II, commentary at 282-283, unqualifiedly rejected the concept of accomplice liability where a person after the fact assists an offender and substituted in its place the theory of obstructing justice as a separate and distinct crime with appropriate penalties unrelated to the principal offense that occasioned the obstructive behavior. Where one hinders his own apprehension, prosecution, conviction or punishment non-cooperation with police investigations focuses on primary criminal avoidance for the principal offense.
While it is true that obstructive behavior engaged in for another and similar conduct for one's own self each serves to
diminish police effectiveness, the former is only actionable by those who take the initiative in throwing police off the track. Id. at 285. The supplying of false information to police where they initiate the inquiry and the respondent is not the primary offender fails to constitute "volunteered" misinformation. Additionally, in D'Addario, supra, there were other sections of the statute that arguably may have applied to the factual circumstances existent therein.
Here, unlike D'Addario, supra, the tender of fictitious information by the primary offender was an attempt to escape his own criminal responsibility and constitutes a separate and distinct crime disassociated with the underlying offense that initially attracted police attention. All that the State need prove is that false information was volunteered to a law enforcement officer with defendant's purpose being to hinder his own apprehension, prosecution, conviction or punishment. The pertinent part of N.J.S.A. 2C:29-3(b)(4) provides:
A person commits an offense if, with purpose to hinder his own apprehension, prosecution, conviction or punishment, he:
Volunteers false information to a law enforcement officer.
The operative words of the statute are with purpose; that is, the voluntary supplying of false information to a law enforcement officer with purpose to accomplish a desired object -- the hindering of one's own apprehension, prosecution, conviction or punishment. As set forth in ...