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State v. Marchand

Decided: August 4, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROGER J. MARCHAND, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Union County.

King, Gaulkin and Gruccio. The opinion of the court was delivered by King, P.J.A.D.

King

The defendant, an agent for the federal Drug Enforcement Administration, appeals from his conviction of the third-degree crime of unlawful restraint, holding a victim in involuntary servitude. N.J.S.A. 2C:13-2(b). The issue of his guilt on that charge was submitted to the jury as a lesser-included offense of the charge of second-degree kidnapping. N.J.S.A. 2C:13-1(b)(2).

The issue of defendant's guilt on the charge of false imprisonment, N.J.S.A. 2C:13-3, a disorderly persons offense, was also submitted to the jury as a lesser-included offense. The jury never returned a verdict on this charge since it found defendant guilty of the greater offense of criminal restraint. The indictment stemmed from a seamy incident in which defendant allegedly was helping one of his drug-dealing informants, now himself a fugitive, in his bounty-hunting business.

In his zeal to locate a bail-jumper the informant apprehended the fugitive's girlfriend, dragging her from her apartment in the middle of the night in handcuffs. With defendant's alleged assistance, in the hopes of making the victim reveal her male friend's whereabouts, the informant kept her physically restrained for a period of five to six hours before releasing her unharmed.

On this appeal defendant claims that it was improper to submit to the jury the charge of criminal restraint under N.J.S.A. 2C:13-2(b), holding "another in a condition of involuntary

servitude," as a lesser-included offense of kidnapping. N.J.S.A. 2C:13-1(b). Defendant could not have been found guilty under the only other available theory of felonious "criminal restraint" because the State never proved that the victim was restrained "in circumstances exposing [her] to risk of serious bodily injury." N.J.S.A. 2C:13-2(a).

The issue of defendant's guilt of criminal restraint by holding another in a condition of involuntary servitude turns in this case on the elements of the N.J.S.A. 2C:13-2(b) offense. Defendant contends that coerced or forced labor or service is an essential condition of holding another in involuntary servitude. None was proved here as part of the State's case. The State contends that this condition is not an essential element of the offense.

The statutory scheme of grading kidnapping-related offenses, the legislative history, and the recent decision of the United States Supreme Court, United States v. Kozminski, U.S. , 108 S. Ct. 2751, 101 L. Ed. 2d 788 (1988), all lead us to conclude that defendant could not properly be found guilty of involuntary servitude-criminal restraint on this record.

As to the statutory scheme, non-ransom kidnapping in violation of N.J.S.A. 2C:13-1(b) requires proof that the victim has been unlawfully removed either from a place of residence or business or a substantial distance, or was unlawfully confined for a substantial period of time, and that the removal was done for an enumerated unlawful purpose. In this case, the defendant was accused of such removal or confinement with the purpose of terrorizing the victim. N.J.S.A. 2C:13-1b(2). Since the victim here was released unharmed and in a safe place, the crime would have been one of the second degree. N.J.S.A. 2C:13-1c.

N.J.S.A. 2C:13-2 describes the two species of the third-degree crime of criminal restraint: (1) restraining another unlawfully in circumstances exposing him to risk of serious bodily harm, or (2) holding a ...


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