On appeal from Superior Court, Law Division, Union County.
Antell and Landau. The opinion of the court was delivered by Landau, J.A.D.
Following entry of a guilty plea on one count of attempted theft by deception contrary to N.J.S.A. 2C:20-4a and N.J.S.A. 2C:5-1, defendant Marc Yoskowitz appeals his conviction, and also challenges the indictment under which he was charged with arson with the purpose of collecting insurance money contrary to N.J.S.A. 2C:17-1b(3). He also raises an issue arising out of this court's earlier decision which summarily reversed the trial judge's reversal of the prosecutor's denial of application for Pretrial Intervention (PTI).
In January 1985, Yoskowitz, who was at that time 18 years old, formulated a scheme to defraud Allstate Insurance Company by arranging to have his 1980 Pontiac Trans Am stolen and then claiming for the loss on his insurance. The "theft" was to take place at the Livingston Mall and on January 22, 1985, Yoskowitz drove his car to the mall, locked it, went inside the mall and upon returning to the parking lot, "discovered" that his car was missing. The Livingston Police were called to the scene and Yoskowitz filed a police report with them alleging that his Pontiac Trans Am had been stolen.
The following week, police and fire officials were sent to the scene of a fire involving an abandoned car at the end of Village Road in Union Township. After the fire was extinguished, the car which was later determined to be Yoskowitz' was examined by an investigator from the Union County Prosecutor's Office who concluded that it had been deliberately set on fire after various components were apparently removed. That same day, Detective Dan Mazur of the Union Police, who along with Detective Scott Stehlgens of the Livingston Police had continued to investigate the "theft" of Yoskowitz' car, was advised
that the matter of the burned car had been turned over to the Union County Arson Unit for further investigation.
On February 6, 1985, Detective Mazur informed Yoskowitz that his car had been recovered and on February 11, Detective Stehlgens advised Allstate that the car was found completely burned and that arson was suspected. Four days later, Yoskowitz filed an "Affidavit of Automobile Total Theft" with Allstate Insurance.
On March 5, Detective Mazur contacted Yoskowitz and requested that he come to the Union Police Headquarters. Upon arriving there, Yoskowitz met with Detective Mazur and Detective Stehlgens and admitted orally and in a signed confession that he had paid someone named "Andy" $100 to take his car from the Livingston Mall and get rid of it so that Yoskowitz could obtain the insurance money. The following day, Detective Stehlgens advised Detective Mazur that he was signing a complaint against Yoskowitz for filing a false police report. On March 28, Yoskowitz appeared in the Livingston Municipal Court and pled guilty to giving a false report to law enforcement authorities contrary to N.J.S.A. 2C:28-4b(1). The municipal judge asked:
You were going to beat the insurance company? Is that what you did? You were going to report it stolen, have your buddy take it away and then try and collect from your insurance carrier?
After informing the municipal judge that he gave someone $100 to take his car in order to collect on the insurance, he was sentenced to one year's probation, fined $150 and ordered to pay court costs and a $25 penalty to the Violent Crimes Compensation Board.
On August 8, 1985, Yoskowitz agreed to take a polygraph examination at the Union County Prosecutor's Office respecting the burning of his car. ...