In issue is the question whether N.J.S.A. 2A:111-3, N.J.S.A. 2C:20-4 and N.J.S.A. 30:4D-17, as they relate to indictment 0500-84E, set forth continuing offenses.
Defendant is charged in the first count of indictment 0500-84E with the obtaining of financial assistance by false representation, in the second count with the obtaining of food stamps by false representation, and in the third count with medicaid fraud. The facts are not in dispute for purposes of this motion. Defendant received monthly checks representing social service benefits -- Welfare and Food Stamps -- together with periodic sums for medical assistance. She completed the required initial application and thereafter every six months eligibility renewal forms, thereby receiving continuous benefits from July of 1974 through August of 1983.
If the offenses are not continuous, part of the state's allegations, as contained in the indictment are subject to the statute of limitations, N.J.S.A. 2C:1-6(c).
The specific issue in question, particularly as it relates to Title 2C, has not been decided in New Jersey.
In State v. Weleck, 10 N.J. 355 (1952), the New Jersey Supreme Court dealt with the issue of whether misconduct in office was a continuing offense. The court in Weleck pointed out that "an indictment for misconduct in office may allege a series of acts spread across a considerable period of time," Id. at 374. In Weleck, however, the court also noted that extortion
and attempted extortion were not continuous offenses. In extortion and attempted extortion cases, "the offense is complete with the taking and not before, and the statute of limitations runs from the time of the taking. Similarly the offense of attempted extortion . . . is complete with the making of the demand and not before, and the statute of limitations runs from the time of the demand." Id. at 375.
Therefore, it can be argued by analogy that, in a welfare case such as in the present situation, there was a series of demands, or receipts of individual payments, and each demand or receipt constituted a separate offense or taking. In the case at bar, however, there existed more than a mere series of receipts and demands.*fn1 The defendant's course of conduct was one scheme extending over a period of time involving the same victim perpetrated by the same deception. To reiterate the pertinent phrase of Weleck, "the statute of limitations runs from the time of the taking" Id. at 375. The taking in the case at bar was not complete because the fruits of the defendant's scheme were received in installments rather than in a lump sum. The form of receipt is of little relevance. The fact that this was performed pursuant to a common scheme spread across a period of time is.
The U.S. Supreme Court in Toussie v. U.S., 397 U.S. 112, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970) held that failure to register for a draft was not a continuous offense because it was not explicitly made so by the Selective Service statutes.
However, the Supreme Court noted, in rejecting the continuous offense argument that
". . . considerations do not mean that a particular offense should never be construed as a continuous one. They do however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such
that (Congress) must assuredly have intended that it be treated as a continuous one." Id. at 115, 90 S. Ct. at 860. (emphasis supplied)
This matter is distinguishable from Toussie. In Toussie, a negative act (failure to register) at a specific time completed the offense. In the present case, the defendant repeatedly reaffirmed her eligibility and continued to receive the benefits of this representation. The acts of the defendant prevent the application of a "specific time" of offense analysis.
Other jurisdictions have specifically dealt with the issue before the court. People v. Peck, 93 Misc. 2d 838, 839, 403 N.Y.S.2d 624-625 (N.Y.Crim.Ct.1973), interpreted the holding in People v. Lofton, 73 Misc. 2d 285, 340 N.Y.S. 2d 984 (N.Y.C. Crim.Ct.1973), to be that:
"defendant's reaffirmation on each welfare check of her obligation to report any change in circumstances which was the predicate for eligibility recertification by the Dept. of Social Services constituted the cashing of each check a separate larceny. That conclusion was made after trial and on failure of evidence of a common scheme or plan."
The court in Lofton itself noted that "for a series of acts to constitute a continuous crime, money or property must be obtained from the same source over a period of time with a single intent and design in execution of a common fraudulent scheme", Id. at 287, 340 N.Y.S. 2d at 987 quoting People v. Cox, 286 N.Y. 137, 141, 36 N.E. 2d 84, 86 (Ct.App.1941).
The court in Lofton distinguished the case of People v. Kirk, 62 Misc. 2d 1078, 310 N.Y.S. 2d 155 (Rockland Cty Ct.1969). In Kirk, the defendant, while applying for a position of Commissioner of Social Welfare in 1966, falsely represented to the Board of Supervisors that he possessed a Bachelor of Science degree. He was subsequently charged with the offense of false pretenses in 1969. The Court in Kirk noted the two year statute of limitations did not bar prosecution of the crime as "the termination date of the commission of a continuous crime and not the starting date governs the Statute of Limitations." Id. at 1085, 310 N.Y.S. 2d ...