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State v. Garofola

Decided: March 18, 1988.

STATE OF NEW JERSEY PLAINTIFF,
v.
EDWARD GAROFOLA, ET ALS. DEFENDANTS



Humphreys, A.j.s.c.

Humphreys

In this mega indictment, 28 defendants are charged with racketeering, conspiracy, and numerous other crimes. See New Jersey Racketeering Statute, N.J.S.A. 2C:41-1 et seq. The purpose of the conspiracy was to provide illegal dumping sites in New Jersey for out-of-state solid waste haulers. The State charges that the conspiracy involved bribery of New Jersey municipal officials, extortion and other crimes.

Defendants have moved to dismiss the indictment and for other relief. This opinion will deal with defendants' motion to dismiss counts 14 and 15 of the indictment. Defendants are charged in these counts with theft of real property by deception.*fn1

The issue, novel in New Jersey, is whether unlawful use of real property can constitute the crime of theft of that real property. The court holds that it cannot. Defendants motion to dismiss these counts is granted.

I.

The State contends that defendants used the reserved portion of 83rd Street in North Bergen as a site for the unlawful disposal of solid waste. Defendants are charged with theft of the street by deception through reinforcing and failing to correct a false impression that the disposal and abandonment of solid waste upon the reserved portion of the street was authorized by North Bergen and the Hackensack Meadowlands Commission.

A person is guilty of theft if that person purposely obtains property of another by deception. The word "obtained" means "in relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another. . . ." N.J.S.A. 2C:20-1(f).

The State contends that defendants "obtained" the real property "by depositing huge amounts of solid waste rendering the land useless for any other purpose. By so doing, they also rendered the legal interest worthless, thus accompanying a de facto transfer of title in the nature of conversion or adverse possession."

The State's theory brings to mind a scene from the popular movie "Beverly Hills Cop Two." The Detroit detective, Eddie Murphy, arrives in Beverly Hills, California. He finds a mansion temporarily vacant. When the Beverly Hills Police arrive, they find Eddie Murphy happily using the swimming pool. The police accuse him of stealing the mansion. Eddie Murphy denies the charge saying he is "borrowing it."

The following examination of the common law and the New Jersey Code of Criminal Justice shows that defendants and Eddie Murphy are correct.

II.

The legal progenitor of the theft charged here is the common law crime of larceny. See Gardner v. State, 55 N.J.L. 17, 24,

26 A. 30 (Sup.Ct.1892), aff'd without opinion 55 N.J.L. 652, 30 A. 429 (E. & A. 1893). That crime was committed "when one person misappropriated another's property by means of taking it from his possession without his consent." 2 ...


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