On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Stein, J.
The critical issue in this case is the constitutionality of N.J.S.A. 2C:1-8(d)(2), which provides that a defendant may be convicted of a conspiracy to commit a substantive offense even though the crime of conspiracy was not charged in the indictment.*fn1 Defendant was indicted for theft. Pursuant to N.J.S.A. 2C:1-8(d)(2), the trial court instructed the jury to consider, as an included offense, the defendant's guilt of the crime of conspiracy to commit theft. Defendant was acquitted of theft and convicted of conspiracy. Following the conviction, on defendant's motion, the trial court arrested the judgment of conviction and dismissed the conspiracy charge. The court reasoned that the conviction could not stand because no overt act in furtherance of the conspiracy had been alleged in the indictment. The Appellate Division affirmed in an unreported opinion. We granted certification. 101 N.J. 237 (1985). We now reverse and reinstate the conspiracy conviction.
Defendant was charged in a two-count indictment. The first count charged defendant, Reynaldo Gonzalez, and William Montgomery with unlawfully taking movable property having a value in excess of $500 from Supermarkets General Corporation. (N.J.S.A. 2C:20-3). The second count charged defendant
and Montgomery with the theft from Supermarkets General Corporation of property having a value in excess of $500 by failing to make the legally-required disposition of such property. (N.J.S.A. 2C:20-9). Both counts alleged that the property taken was 5192 cases of canned tuna stored by Supermarkets General Corporation at a warehouse owned by Port Jersey Distribution Services, and that the thefts occurred on various dates between January 22 and April 12, 1981.
The State's principal witness before the grand jury and at trial was defendant Montgomery.*fn2 Montgomery testified that he had been solicited by LeFurge, a co-employee at Port Jersey Distribution Services, to participate in a scheme to steal property from their employer's warehouse. Montgomery's role in the enterprise was to sign fraudulent gate passes so that trucks containing stolen property could avoid detection by the guards at the warehouse gate. Montgomery identified Gonzalez as the driver whose gate pass he had signed on two of the seven occasions on which property had been removed from the warehouse. Montgomery testified that he was paid $2500 in cash by LeFurge for his complicity in the thefts.*fn3
At the close of the State's case the trial court dismissed the second count of the indictment, concluding that the evidence was not sufficient to establish that defendant LeFurge had received possession of the stolen property pursuant to a legal obligation to return it to its owner. Before the defense case
commenced,*fn4 the trial court announced its intention to charge the jury with the crime of conspiracy to commit theft pursuant to N.J.S.A. 2C:1-8(d)(2).
During its charge, the trial court instructed the jury concerning the crime of conspiracy to commit theft. The court cautioned the jury not to consider the statements or conduct of Montgomery as evidence against Gonzalez or LeFurge unless it found that the State had proven by independent evidence the existence of a conspiracy to commit the crime charged in the indictment. The court also instructed the jury that it could not convict for conspiracy unless the State had proven beyond a reasonable doubt that at least one of the co-conspirators had committed an overt act to effectuate the objectives of the conspiracy.
The jury returned a verdict acquitting defendant LeFurge of the theft charge, but convicting him of conspiracy to commit theft. Gonzalez was acquitted of both charges. Counsel for LeFurge moved to set aside the verdict, requesting an arrest of judgment and a judgment of acquittal or, in the alternative, an order vacating the judgment of conviction and granting a new trial. After hearing argument on the motion, the trial court entered an order arresting the judgment and dismissing the conspiracy charge, R. 3:21-9, on the ground that no overt act in furtherance of the conspiracy had been alleged in the indictment. The Appellate Division affirmed on the basis of the trial court's opinion.
The trial court's decision to arrest the judgment of defendant's conspiracy conviction was consistent with the case law prior to the enactment of the New Jersey Code of Criminal Justice (Code). Although convictions of conspiracy to commit a
common-law crime did not require proof of an overt act, proof of an overt act was essential with respect to conspiracies to commit all but the most serious statutory crimes. State v. Cormier, 46 N.J. 494, 508 (1966); N.J.S.A. 2A:98-2.*fn5 Accordingly, the pre-Code decisions relied upon by the trial court, State v. Newell, 152 N.J. Super. 460, 466 (App.Div.1977), and State v. Malaspina, 120 N.J. Super. 26, 29 (App.Div.1972), required that the overt act, as an essential element of the crime of conspiracy, be alleged specifically in the indictment. The justification for the requirement that an overt act be proved is that it "assures that a credible threat of an actual crime exists, and also guards against the unwarranted indictment of innocent persons under the conspiracy rubric." Note, "Conspiracy: Statutory Reform Since the Model Penal Code," 75 Colum.L.Rev. 1122, 1155 (1975); see also Yates v. United States, 354 U.S. 298, 334, 77 S. Ct. 1064, 1084, 1 L. Ed. 2d 1356, 1384 (1957) (the function of an overt act in a conspiracy prosecution is to manifest that the conspiracy is no longer resting solely in the minds of the conspirators or fully completed and no longer in existence).
The drafters of the American Law Institute's Model Penal Code adopted the rule that both allegation and proof of an overt act are necessary except for conspiracies to commit first- and second-degree crimes. Model Penal Code § 5.03(5) (Official Draft and Revised Comments, 1985) (hereafter cited as MPC). The Model Penal Code requires an overt act in the view
that it affords at least a minimal added assurance, beyond the bare agreement, that a socially dangerous combination exists -- added assurance that we believe may be dispensed with where the agreed-upon crime is grave enough to be classified as a felony of the first or second degree and the importance of preventive intervention is pro tanto greater than in dealing with less serious offenses. [ MPC (Tent. Draft No. 10, 1960) at 141 (footnote omitted).]
In two significant respects the drafters of our Code did not track the Model Penal Code's treatment of conspiracy. Although our Code followed ...