On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Furman, Long and Scalera. The opinion of the court was delivered by Scalera, J.A.D.
Defendant was tried to a jury and convicted of theft of electrical power services, contrary to N.J.S.A. 2C:20-8(a), for which he was sentenced to a term of probation for five years, required to pay a fine of $2,500, ordered to make restitution of $14,284.61, and was assessed a $25 penalty payable to the Violent Crimes Compensation Board and court costs of $20. He appeals from that conviction contending that the trial judge erred when he included in his charge to the jury the statutory presumption contained in paragraph c of that statute and further, that the State had failed to sustain its burden of proof against him. We disagree and affirm.
In August of 1984, defendant contacted Jersey Central Power and Light (JCP & L) because his home in Manalapan, New Jersey was experiencing a partial loss of electrical power. A JCP & L employee, Fred Black, came to repair the problem and found that an electrical connection at a nearby utility pole had burned out. After rectifying this problem, Black returned to defendant's premises to reset the meter on the side of the house. While doing so he noticed that "there were things operating in the house, but the meter wasn't turning." Accordingly, in defendant's presence, he replaced the meter with a new one and retained the malfunctioning one. In September 1984, defendant's wife placed a call complaining of an excessive electricity bill. JCP & L sent Joseph Bonfiglio, a meter tester, to investigate the complaint. He found the meter to be in proper working order but noticed signs that "somebody had been pulling the meter out of the panel and tampering with it." The nickle plated prongs on the meter had been worn down to the copper which could only occur as a result of the meter being repeatedly removed. The meter itself was burned by electrical arcing, further indicating tampering. Since there was no reason for anyone other than a JCP & L employee to remove a meter Bonfiglio filled out an investigation order.
As a result, Douglas Wasser, an investigator for JCP & L, obtained defendant's past electrical billing records. He determined that Dixon's electrical consumption from 1975 to 1979 had been at a high level and that from 1979 to August 1984, before the new meter had been installed, electrical consumption had been relatively low. Wasser then had the meter that had been removed from Dixon's house sent to a meter-testing facility where it was examined by Lawrence Casterline, the supervisor of the JCP & L testing facility. There it was discovered that one of the two wires in the meter which registers electrical use had been cut and poked through a vent hole in the back of the meter. Casterline noted that the end of the severed wire was stripped bare and grounded against another part of the meter so as to cause the meter to register only a maximum of 50% of the actual electrical use. He further indicated that only tampering could have caused such a condition. It was estimated that defendant had thereby illegally obtained $14,284.61 in electrical power from JCP & L between 1979 and August 1984.
Defendant testified that he lived in the house in question since 1979 with his wife and four children. However, he categorically denied that he had tampered with any electric meter.
Defendant contends that the trial judge committed reversible error by instructing "the jury that if they found the existence of any type of tampering with respect to the defendant's meter, then they could apply one of the presumptions found in N.J.S.A. 2C:20-8." He argues that since the presumptions are only found in N.J.S.A. 2C:20-8(c) and (d), which are intended specifically to punish meter tampering (a disorderly persons offense) they should not apply to subsections (a) and (b) which seek to proscribe the theft of electrical services (a crime of the fourth, third or second degree). Defendant does not complain of the precise manner in which the trial judge charged that the jury could draw an inference based on the statutory presumption.
In the instant case, the indictment charged defendant with "purposely obtaining services from Jersey Central Power and Light Company which he knew were available only for compensation, by deception, tampering or other means, . . . having a value in excess of $500.00, contrary to the provisions of N.J.S.A. 2C:20-8. . . ." Thus he was on notice that the State would seek a conviction of the theft of electric power valued over $500 based on his "deception, tampering, or other means."
At the time in question the applicable portions of N.J.S.A. 2C:20-8 provided:*fn1
a. A person is guilty of theft if he purposely obtains services which he knows are available only for compensation, by deception or threat, or by false token, slug, or other means, including but not limited to mechanical or electronic devices or through fraudulent statements, to avoid payment for the service. "Services" include labor, professional service, transportation, telephone, or other public service, accommodation in hotels, restaurants or elsewhere, entertainment, admission to exhibitions, use of vehicles or other movable property. Where compensation for service is ordinarily paid immediately upon the rendering of such service, as in the ...