On appeal from Superior Court of New Jersey, Law Division, Essex County.
Morton I. Greenberg,*fn1 J. H. Coleman and Long. The opinion of the Court was delivered by J. H. Coleman, J.A.D.
This appeal raises questions respecting the construction and application of N.J.S.A. 2C:44-5 b(2). The primary question presented is whether § 5 b(2) should be construed to give defendant a credit for time served on a previous sentence so as to reduce a term of parole ineligibility imposed for a separate offense at a subsequent sentencing. In a jury trial, defendant was found guilty of third degree receiving stolen property, an automobile, contrary to N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2 b(2)(b). He was sentenced on November 15, 1984 to a custodial term of five years and required to serve two and one-half years before becoming eligible for parole for the theft offense which occurred on February 23, 1983. The sentence was made to run consecutively to a three year custodial term imposed on December 16, 1983. We hold that the credit cannot be used in remission of the subsequent sentence.
The facts essential to our decision are not complicated. Two Newark police officers, Henry Moore and James Evans, received
a radio dispatch on February 23, 1983 at approximately 2:30 or 2:45 p.m. regarding a green Cadillac that was in the process of being "stripped" at 455 Springfield Avenue. Upon arriving at this location approximately two or three minutes later, the officers observed an abandoned tavern with a parking lot in the rear. While searching the lot, the officers received information that the suspect had fled with the Cadillac in a northerly direction along Jacobs Street.
The officers drove north along Jacobs Street until they saw a green Cadillac, which matched the description received from the radio dispatch, parked at the corner of Gold Street. Officer Moore, who was approximately 30 feet from the Cadillac, observed an individual, later identified as defendant, exit the vehicle and flee into a rear yard on Jacobs Street. Defendant, who had been the only occupant in the vehicle, fled over fences and through several rear yards while Officer Moore chased him on foot. Moore, who never lost sight of defendant during the five minute chase, eventually apprehended defendant and placed him under arrest.
The officers then examined the Cadillac and observed that the plastic covering surrounding the steering column had been broken, the ignition had been partially broken out of the dashboard and the radio had been partially removed from the dashboard. Although Officer Moore did not attempt to drive the Cadillac, it appeared operable to him. To the best of his recollection, all the tires were on the car. Pursuant to normal police practice, the officers called a towing service to remove the Cadillac for impoundment.
Reynolds J. Reino, the president of A.L.O. Transportation, was the owner of the green Cadillac on February 23, 1983. The car, which was locked, disappeared while parked in front of his Irvington office on the afternoon in question. He reported the theft to the Irvington Police Department. After being advised that his car was at Dante's Brothers Towing in Newark, Reino arranged to have it released. When the Cadillac was released,
Reino observed that its tires were missing, the radio and ignition had been "ripped out," the trunk lock was broken and there was a hole beneath the door lock. He maintained that the car was not in operable condition. Reino did not know defendant and had never given him permission to use his car.
Defendant did not testify but his employer, Nunzio Martucci, testified as a witness on his behalf. Martucci, who owns a mobile ice cream company, maintained that defendant worked with him selling ice cream on the streets of Newark from 8:30 a.m. until approximately 2:30 p.m. on the day in question. Aside from selling ice cream, defendant also worked as a mechanic on Martucci's trucks.
On this appeal, defendant seeks a reversal on a variety of grounds. He contends for the first time on this appeal that the State was required to, but failed to prove as an element of the crime, that the automobile was "movable property." This contention is grounded in the owner's testimony that the tires were missing and that the Cadillac was not in operable condition when it was released to him from Dante's storage yard.
N.J.S.A. 2C:20-7, which defines the offense of receiving stolen property, provides in pertinent part:
a. Receiving. A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner. "Receiving" means acquiring possession, control or title, or lending on the security of the property.
The term "movable property" is defined in N.J.S.A. 2C:20-1 e as
When the two statutes are read together, it becomes apparent that the Cadillac was "movable property" regardless of whether it had tires or could be moved by its own power. Clearly, it was capable of being moved from one location to ...