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State v. Yoskowitz

Decided: July 19, 1989.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
MARC YOSKOWITZ, DEFENDANT-RESPONDENT



On certification the Superior Court, Appellant Division, whose opinion is reported at 224 N.J. Super. 375 (1988).

For reversal and remandment -- Justices Clifford, Pollock, O'Hern and Stein. For reversal -- Justice Garibaldi. Opposed -- Justice Handler. Pollock, J., concurring. Garibaldi, J., concurring in part and dissenting in part. Handler, J., dissenting.

Per Curiam

[116 NJ Page 682] Defendant, Marc Yoskowitz, arranged to have his automobile stolen so that he could collect insurance. On March 28, 1985, defendant pleaded guilty in Municipal Court, Livingston, Essex County, to the disorderly-persons offense of filing a false police report. Seven months later the Prosecutor of Union County charged defendant with third-degree arson and third-degree attempted theft by deception. The issue in this appeal is whether a subsequent indictment charging arson and attempted

theft by deception is barred by double jeopardy, the mandatory joinder rule, or fundamental fairness.

I

In January 1985, the defendant, then eighteen years old, was having financial trouble and his car was experiencing mechanical difficulties. To get money, defendant devised a plan to defraud his insurer, Allstate Insurance Company, by having his 1980 Pontiac Trans Am stolen and then claiming insurance for the loss. In furtherance of the scheme, defendant claims to have met a man named "Andy" at an unnamed bar*fn1 on or about January 17, 1985, and to have paid Andy $100 to "get rid of [his] car." Defendant described the car to Andy and gave him its license plate number and an extra set of keys. He told Andy he would park the car near the Burger King at the Livingston Mall at about 1:00 p.m. on January 22, 1985.

On that day, defendant drove his car to the Livingston Mall, parked it near the Burger King, locked it, and went shopping. When he returned to the parking lot, his car was missing. Defendant immediately contacted Mall security officers, who assisted him in the futile search for his car. The Livingston Police Department then was called, and defendant reported that his car had been stolen from the mall. The next day he reported the loss to his insurance agent and to Allstate. Although he was aware that the car was a 1980 model, defendant falsely represented to the police and his insurance company that it was a 1982 vehicle. His title papers erroneously indicated that the car was a 1982 model.

Eight days later, on January 30, 1985, at approximately 3:30 a.m., a fire was reported in a deserted area on Village Road in

Union.*fn2 On arriving at the scene, firefighters found a burning automobile later identified as defendant's. The car exploded shortly after their arrival, but the fire was soon extinguished. No one was injured by the blaze. A search of the immediate area at the time of the fire yielded a piece of cloth and a sports jacket, each of which smelled of gasoline. The owner of the jacket was never discovered.

The vehicle was examined by fire inspectors from the Union County Bureau of Fire Prevention and an investigator from the Union County Arson Unit. The investigators concluded that the car had been stripped of valuable accessories and, with gasoline as the probable accelerant, set ablaze from within. That same day, Detective Stan Mazur of the Township of Union Police Department was informed that the matter had been referred to the Union County Arson Unit for further investigation. A February 1, 1985, Union County Prosecutor's Office (Arson Unit) intra-office report described the burned vehicle as having "been stolen at the Livingston Mall some months ago. . . . [T]he Livingston Police Department is doing a follow-up investigation on the stolen car aspect along with the Union Police Department."

On February 6, 1985, defendant called Detective Mazur and learned that his car had been recovered and towed to a local auto-repair shop. Five days later, on February 11, 1985, Detective Stehlgens informed Allstate that the car had been found completely burned and that arson was suspected. On February 15, 1988, defendant filed with Allstate an "Affidavit of Automobile Total Theft."

Detective Stehlgens of the Livingston Police Department and Detective Mazur of the Union Police Department investigated the theft of the vehicle. On March 5, 1985, Detective Mazur

called defendant and requested that he come to the Union Police Station for questioning. On arrival, defendant met with detectives Mazur and Stehlgens. After being informed of his constitutional rights, and after signing a waiver-of-rights form, defendant agreed to make a statement to the two municipal police officers. No county police officer was present at that meeting. Defendant admitted orally and in a signed confession that his car was not stolen but that he had paid someone he knew only as "Andy" $100 to take his car from the Livingston Mall so that he could collect on the insurance policy. Defendant said that he would try to find out Andy's last name and tell the police. Defendant maintains that he made his written statement in reliance on assurances from the police that he would be charged only with a disorderly-persons offense and not brought into Superior Court.

On March 6, 1985, Detective Stehlgens informed Detective Mazur that he would be signing a complaint against defendant for filing a false police report. Defendant claims that "[t]he Incident Report of Union Police with entries 1/30/85-3/6/85 . . . indicates the defendant as being the [sic] accused of the crime of arson for insurance N.J.S.A. 2C:17-1(b)(3). Thus both the Union Police and the Livingston Police Officials were aware as early as March 6, 1985, of the arson and knew defendant was involved." This claim by defendant is not supported by the incident report cited, however, because although it contains references to March 6, 1985, the report was dated May 31, 1985.

On the other hand, defendant refers to an entry in an Allstate diary, apparently made on March 6, 1985, that says "Rec'd call from Det Mazur [sic] of Union * * * he has stmt from insured stating he had someone burn his car for him. Still waiting for name of person who burnt [sic] car so req I did not send denial. Closed file after hearing from Det. will refer to fraud div." The Allstate diary, in fact, indicates earlier communications between the authorities and Allstate. On February 11, 1985, Detective Stehlgens called to say insured's car was found in Union "completely burnt -- arson Union PD Det Stan Mazur is

investigating." And on February 26, 1985, a conversation took place with "Livingston PD" in which it was communicated that the Livingston authority "will gt together w/ Union Det. . . ."

On March 15, 1985, Detective Stehlgens filed a complaint in the Livingston Municipal Court against defendant, charging him with filing a false police report on January 22, 1985, in violation of N.J.S.A. 2C:28-4(b)(1). On March 28, 1985, defendant appeared without counsel at the Livingston Municipal Court and pleaded guilty to that offense. Before defendant's plea was accepted, the municipal court advised him of the charges against him, of his right to consult with an attorney, and of the possible penalties he faced. The following colloquy occurred between the municipal court and defendant:

COURT: Anyone promise you anything or threaten you in any way to induce you to enter this plea?

DEFENDANT: No.

COURT: Do you do so voluntarily?

DEFENDANT: Yes.

COURT: What's this all about? Why did you report your car stolen if it wasn't stolen?

DEFENDANT: Well someone did take it but I, I talked to some guy and I gave him some money to take the car. I just, I guess I wanted to collect on the insurance.

COURT: 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.

DEFENDANT: Well I didn't know the guy.

COURT: Well so it wasn't your buddy, you had some stranger take it away.

DEFENDANT: That's right.

COURT: How much did you pay him?

DEFENDANT: $100.00

COURT: You mean he gets the car for $100.00 and he takes it to a chop shop and gets it all broken so they can use it for parts, you make $6,000.00 and . . . they raise the premiums for everyone else.

DEFENDANT: I know I was wrong and I -- they dropped the claim.

The trial court sentenced defendant to one year of probation, fined him $150, and ordered him to pay court costs and a $25 penalty to the Violent Crimes Compensation Board.

On July 2, 1985, the police received information from a person named Stewart Kaiser that defendant had admitted that

he had his car burned. On August 28, 1985, defendant submitted to a polygraph examination at the Union County Prosecutor's Office. Defendant was told in advance of the questions to be asked and signed a waiver of rights. At the examination's conclusion, defendant was informed that his responses to the questions "Did you plan to have your car set on fire?" and "Before your car was set on fire, did you definitely know it was about to happen?" (to which he answered "No") indicated deception on his part. It was also the examiner's opinion from defendant's reactions during the test that he knew that gasoline was the accelerant used in the arson. On being told these results, defendant informed the investigator he had made arrangements with Andy to get rid of the car and that when he had asked Andy how this would be accomplished, Andy had said "'Probably burn it.'"

On October 30, 1985, a Union County indictment was filed, charging defendant with third-degree arson with the purpose of collecting insurance, contrary to N.J.S.A. 2C-17-1b(3), and third-degree attempted theft by deception, contrary to N.J.S.A. 2C:20-4(a).

On December 30, 1985, defendant made a motion to dismiss the indictment on the grounds of mandatory joinder, double jeopardy, and the enforcement of a plea agreement. Defendant's motion was denied.

On January 14, 1986, defendant signed a certification in which he said that when he went to the Union Police Station to speak with Detective Mazur and Detective Stehlgens on March 5, 1985,

Detective Mazur "promised that if I told them about what happened to the car and gave them a statement, that I would be charged with a disorderly persons offense in Municipal Court * * *. They both concurred in that promise. Detective Mazur questioned me, then Detective Stehlgens took a written statement from me. He told me he would be filing a complaint against me in Livingston Municipal Court. The officers told me that if I made the statement the whole thing would be "over."

4. On March 15, 1985, I was charged with filing false police reports * * * I pleaded guilty * * * and I was sentenced. I believed and expected that the entire matter had been disposed of.

On January 31, 1986, defendant's application for PTI was rejected. On appeal the trial court reversed the decisions of the program director and the Prosecutor and ordered that defendant be admitted to PTI. The Appellate Division summarily reversed the trial court and denied Yoskowitz's motion for reconsideration. We denied leave to appeal.

On November 18, 1986, defendant entered a retraxit plea of guilty to the charge of attempted theft by deception, but reserved the right to appeal issues pending, including his motion to dismiss the indictment. The State, furthermore, agreed to dismiss the arson count and recommend a non-custodial sentence. Defendant was sentenced to a three-year probationary term with various conditions.

In defendant's appeal to the Appellate Division, he claimed that the indictment for theft and arson must be dismissed because it violates double jeopardy, the mandatory joinder rule, and principles of fundamental fairness. Defendant also contended that the agreement entered between Detectives Stehlgens and Mazur and defendant before he pleaded guilty to the municipal-court charge must be enforced by dismissal of the indictment and that the Appellate Division erred by summarily reversing the trial court's order admitting him to PTI.

The Appellate Division reasoned that the facts do

not fit squarely within either a double jeopardy or a mandatory joinder rule analysis, . . . [but] that the law enforcement authorities' failure to handle the municipal charges in one prosecution was contrary to the principles of fundamental fairness and reasonable expectations which are the underpinnings of both double jeopardy and the mandatory joinder rule. [224 N.J. Super. 375, 381 (1988).]

The court found "the impingement on these principles * * * so significant and presently incapable of remedy" that it felt "constrained to dismiss Yoskowitz' indictment and to vacate his guilty plea for theft by deception."

We granted the State's petition for certification, 111 N.J. 608 (1988), but denied defendant's cross-petition. 111 N.J. 648 (1988).

II

The double-jeopardy clause protects criminal defendants (1) against a second prosecution for the same offense after acquittal; (2) against a second prosecution for the same offense after conviction; and (3) against multiple punishments for the same offense. State v. Biegenwald, 110 N.J. 521, 532 (1988) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969)). The instant case involves prosecutions for the same offense following a conviction. In resolving double jeopardy claims, the main difficulty generally is determining "whether the second prosecution is for the same offense involved in the first." See State v. DeLuca, 108 N.J. 98, 102 (1987), cert. den., 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987) (citations omitted) (citing Thomas, The Prohibition of Successive Prosecutions for the Same Offense: In Search of a Definition, 71 Iowa L.Rev. 323, 330-35 (1986) (discussing six possible tests for defining "same offense")).

The traditional test for defining a "same offense" was set out in Blockburger v. United States, 284 U.S. 299, 303-304, 52 S. Ct. 180, 181-182, 76 L. Ed. 306, 309 (1932), in which the Court said the following:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

[(emphasis added).]

However, in Illinois v. Vitale, 447 U.S. 410, 420, 100 S. Ct. 2260, 2267, 65 L. Ed. 2d 228, 238 (1980), the Supreme Court reexamined the Blockburger test. There the defendant was first convicted of failure to slow his car to avoid an accident. He was then charged with involuntary manslaughter arising from the same incident. After enunciating the Blockburger or

"elements" test, the Vitale Court also went on to state that "if in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution." Id. at 421, 100 S. Ct. at 2267, 65 L. Ed. 2d at 238.

The Vitale decision has created controversy among state and federal courts over whether the traditional Blockburger test has been expanded. A number of jurists have concluded that Vitale did not alter the Blockburger or "elements" test. Thigpen v. Roberts, 468 U.S. 27, 104 S. Ct. 2916, 82 L. Ed. 2d 23, 32 (1984) (Rehnquist, J., dissenting); State v. Zegart, 452 U.S. 948, 951-952, 101 S. Ct. 3094, 3096, 69 L. Ed. 2d 961, 963 (1981) (Burger, C.J., dissenting from denial of certiorari); United States v. Grimes, 573 F. Supp. 1202, 1207 n. 4 (S.D.Ohio 1983); State v. Timms, 505 A.2d 1132, 1138 (R.I.1986). In their view, an analysis of the actual proofs offered at trial is unnecessary.

We examined the impact of Vitale on the Blockburger test first in State v. Dively, 92 N.J. 573 (1983), and then more recently in State v. DeLuca, supra, 108 N.J. 98. In State v. Dively, we concluded that Vitale did alter the Blockburger test by establishing an additional prong to be met by the defendant seeking to assert a double-jeopardy claim. The defendant in that case had driven his car while intoxicated and caused an accident that resulted in a death. He subsequently pleaded guilty in municipal court to driving while intoxicated, a charge into which reckless driving and failure-to-keep-to-the-right charges had been merged, driving without a license, and driving after license revocation. Id. 92 N.J. at 576-77. A few months after he was sentenced on those charges, defendant was indicted by a grand jury for death by auto. To this charge he also pleaded guilty, but he reserved his right to appeal the court's denial of his motion to dismiss based on double jeopardy. In construing Vitale, we concluded that the defendant needed to: (a) meet the elements or Blockburger test; and (b) show that

the same evidence used to establish the first offense was to be relied on to establish the second offense. Id. 92 N.J. at 581-83. The defendant in Dively, we held, met both prongs of the test. Ibid.

In State v. DeLuca, supra, 108 N.J. 98, the defendant, while driving with a blood alcohol content of .21%, struck and killed a pedestrian. Id. at 100-01. The issue before the Court was whether defendant's acquittal by a Law Division jury of death by auto, N.J.S.A. 2C:11-5, should bar a subsequent municipal-court prosecution under N.J.S.A. 39:4-50 for driving while intoxicated (DWI). In DeLuca the Appellate Division concluded that although the two charges each required proof of elements not required by the other, and thus passed the Blockburger test, the fact that the State would rely on the same proof in both prosecutions barred the second. Id. 108 N.J. at 101. To this extent, the Appellate Division deviated from Dively 's caveat that "'[i]t is only when both prongs are met that double jeopardy applies.'" Id. 108 N.J. at 106 (citing State v. Dively, supra, 92 N.J. at 581). Describing Dively's requirement that both prongs be satisfied as "erroneous, " we concluded that "the more accurate reading of Vitale is that it enhanced the protection afforded a defendant facing a second prosecution on the same facts," and, therefore, that the second prong is an "alternative" to the first. Id. 108 N.J. at 107. Accord Prohibition of Successive Prosecutions, supra, 71 Iowa L.Rev. at 351-53, and cases cited therein; Comment, State v. DeLuca: Reinterpreting Double Jeopardy Protection Against Successive Prosecutions, 41 Rutgers L.Rev. 431, 443-46 (1988).

In DeLuca, we thus established that a second prosecution will be barred if either the "elements" test or the "evidence" test is satisfied. We said that

the question in the second prong was whether the evidence actually used to establish guilt in the first prosecution is identical to that that will be used in the second, prosecution. If the same evidence used in the first prosecution is the

sole evidence in the second, the second is barred. [Ibid. (emphasis added) (citations omitted).]

Because it was unclear whether evidence of defendant's intoxication was the sole evidence offered by the State to prove recklessness, a necessary element in the death-by-auto case, we reversed and remanded the case to the trial court for review of the proofs of recklessness in the death-by-auto proceeding. Id. 108 N.J. at 111.

In applying the two-prong double-jeopardy analysis of DeLuca we find that defendant fails to satisfy either the "elements" or "evidence" tests. Hence, we conclude that the subsequent indictment does not violate the double jeopardy clauses of the federal and state constitutions.

We turn first to an examination of the statutory provisions of the offenses. The elements of the offense to which defendant pleaded guilty in municipal court, filing a false police report, are codified in N.J.S.A. 2C:28-4b(1), which states:

b. Fictitious reports. A person commits a disorderly persons offense if he:

(1) Reports or causes to be reported to law enforcement authorities an offense or other incident within their concern knowing that it did not occur; (Emphasis added.)

The offense of attempted theft by deception, as set forth in N.J.S.A. 2C:20-4(a), provides that:

A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely:

a. Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise; (Emphasis added.)

The charge for arson with the purpose of collecting insurance in violation of N.J.S.A. 2C:17-1b(3), states:

b. Arson. A person is guilty of arson, a crime of the third degree, if he purposely starts a fire or causes an explosion, whether on his property or another's:

(3) With the purpose of collecting insurance for the destruction or damage to such property. (Emphasis added.)

As noted, the Blockburger or "elements" test (the first prong), looks to "whether each offense requires proof of an additional fact not necessary for the other offense." DeLuca, supra, 108 N.J. at 106. (Emphasis added). The filing of a false police report is not required for prosecution of theft by deception. Likewise, obtaining the property of another by deception is not required for prosecution of filing a false police report. Similarly arson does not require proof of the filing of a false police report, and the filing of a false report does not require a showing of arson, starting a fire, or causing an explosion. Proof of the filing of a false police report is insufficient in itself to establish the offenses of either theft by deception or arson. The elements of the offenses at issue are not identical or inclusive. Each offense "requires proof of an additional fact which the other does not." Blockburger, supra, 284 U.S. at 303-04, 52 S. Ct. at 181-82, 76 L. Ed. 2d at 309. Accordingly, the "elements" prong does not bar the subsequent indictment for arson and theft by deception.

Nor is the subsequent indictment barred by the alternative or "evidence" test (the second prong). DeLuca, supra, 108 N.J. at 107. This test asks us to consider "whether the evidence actually used to establish guilt in the first prosecution is identical to that which will be used in the second prosecution. . . . If the same evidence used in the first prosecution is the sole evidence in the second, the prosecution of the second offense is barred." Id. 108 N.J. at 105-106 (Emphasis added); accord State v. Morales, 224 N.J. Super. 72, 82 (Law Div.1987). Hence, to satisfy the "evidence" prong defendant must establish that the evidence actually used to establish his guilt for filing a false police report is the same and the sole evidence that would be used to prosecute him for the arson and attempted-theft-by-deception offenses. Accord State v. McGaughy, 505 So. 2d 399, 402 (Ala.Crim.App.1987), appeal after remand, 534 So. 2d 1134 (Ala.Crim.App.1988) (defendant's conviction for D.U.I. precluded subsequent prosecution for assault because D.U.I. constituted sole evidence of reckless conduct in second prosecution); State v. Lonergan, 16 Conn. App. 358, 366-70,

548 A.2d 718, 722-23 (1988) (prosecution for operating car while under influence precluded by earlier manslaughter acquittal because evidence relied on in latter was same and sole evidence to be offered in former), cert. granted, 210 Conn. 812, 556 A.2d 611 (1989).

The evidence used to establish that defendant was guilty of filing a false police report was the filed police report and his admission that it was false because his car was not stolen. This was the only evidence actually before the municipal court when it accepted defendant's plea of guilty to the charge of filing a false police report. This evidence used in the municipal prosecution clearly would not be the sole evidence presented in the arson and theft charges; such evidence would be insufficient to establish that defendant is guilty of those offenses.

Nor does our conclusion change if we consider defendant's gratitious statements to the municipal court after he pleaded guilty but before he was sentenced. See the colloquy, supra at 686. No prosecutor would rely on those statements as the sole evidence to establish the third-degree crimes of arson and attempted theft by deception. This is particularly true of a prosecutor who could employ the following additional evidence, none of which was admitted at the municipal court hearing: the fact that defendant's car was burned eight days after the false report was filed (arson was not mentioned by defendant at the municipal court hearing); the testimony of the investigators and firefighters suggesting arson; defendant's sworn statement to the police on March 5, 1985, in which he admitted that he had paid someone named "Andy" to take his car so that he could collect insurance, but in which no mention of arson is made; the "Affidavit of Theft" defendant filed with Allstate; the results of the polygraph examinations; and the testimony of Stewart Kaiser regarding defendant's admission that he had his car burned.

Such additional evidence in and of itself is more than sufficient to establish these offenses. Accordingly, it strains credulity to argue the State would rely solely on the evidence admitted at the municipal court to establish defendant's guilt in filing a false police report to prove arson and attempted theft by deception. Defendant, therefore, is unsuccessful in establishing either the "elements" or "evidence" prongs of the double-jeopardy doctrine with respect to the arson and attempted-theft-by-deception charges. Prosecution of the subsequent indictment, therefore, is not barred under either prong of the DeLuca constitutional-double-jeopardy test.

We reject the dissent's interpretation of double jeopardy. Indeed, we find the dissent's contentions to be flawed both as to the facts and the law. As previously set forth, all the offenses -- the filing of the false police report, the attempted theft by deception and the arson of the automobile -- occurred on different dates and required different proofs. The evidence used to establish the filing of a false police report was neither the same nor the sole evidence that would be used to establish defendant's guilt on the other charges. Ante at 694.

The dissent misconstrues our holding in DeLuca. The dissent alleges that whenever evidence used in an earlier prosecution is used, in part, to help attain a second prosecution, double jeopardy attaches and the latter prosecution is barred. As the dissent proclaims, "[d]ouble jeopardy prevents the recycling of the same evidence . . . to gain another conviction." Post at 724. Thus, the dissent diverges from our holding in DeLuca that the evidence must be both the same and sole evidence used in the second prosecution. DeLuca, supra, 108 N.J. at 107.

To support its tortured interpretation of DeLuca, the dissent quotes from a passage of that opinion, Post at 724, which discusses the comparison of elements. Not surprisingly, this discussion has nothing whatsoever to do with the dissent's double jeopardy analysis; it is a discussion of the ...


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