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State v. Swed

Decided: March 30, 1992.


On appeal from Superior Court, Law Division, Monmouth County.

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



This appeal involves, among other things, the use of a permissive inference in the prosecution of a crime which was committed prior to the Legislature's creation of the inference. We affirm the use of the inference as it is a procedural matter and does not alter the prosecutor's substantive burden of proof.

Defendant Irwin Swed was tried to a jury and convicted of purposefully obtaining, without compensation, from Jersey Central Power & Light Company (JCP & L), services, to wit: electricity, with a value in excess of $500, contrary to the provisions of N.J.S.A. 2C:20-8. After hearing oral argument, the trial Judge denied defendant's motion for judgment of acquittal or, in the alternative, for a new trial, sentencing defendant to five years' probation and ordering him to make

restitution to JCP & L and serve 100 hours of community service.

On appeal, defendant contends:

1. The trial court improperly allowed the admission of documentation which was hearsay and did not fall within the business records exception to the hearsay rule.

2. The trial court's charge that pursuant N.J.S.A. 2C:20-8, a permissive inference could be drawn that tampering was created by the person to whom the electricity was being furnished was violative of due process as well as the United States constitutional ex post facto prohibition.

3. The trial court improperly denied defendant's request for a Clawans charge.

4. The trial court improperly allowed Cross to testify as an expert witness on the quantum of damages.

5. Giving the State the benefit of all reasonable inferences which could be drawn from the evidence adduced at trial, same is insufficient to enable a jury to find that the State's burden has been established beyond a reasonable doubt.

We find defendant's contentions without merit and affirm the conviction.

The facts relevant to this appeal are as follows: On October 1, 1985, Andrew Catania, a meter reader/collector for JCP & L, read the electricity meter at 46 Larchwood Avenue in Oakhurst. While so doing, he noticed that the hands of the meter were not properly aligned. So noting on his report, Catania suggested that an investigation be done by JCP & L.

Alfred M. Cross, the supervisor of Investigation Revenue Protection services for JCP & L, participated in the investigation and testified that the customer of record at 46 Larchwood Avenue from the period between October 30, 1978, through February 26, 1986, was defendant. Cross was privy to such information through his authorization to check the company records for identities of various customers. Cross stated that 90% of customer applications are processed by telephone and immediately put into a computer. He admitted that there was rarely an attempt made by the company to verify the identity of the person who applies as the customer of record. From May 1978 to present, all electric bills were sent to defendant at 46

Larchwood Drive and no complaint was ever received as to the proper billing party. Cross observed defendant's son emerging from the residence in question, but had not seen defendant there.

Gary Ganun, a meter tester with JCP & L, testified that he visited defendant's residence on October 25, 1985. He stated that when he examined the meter at the residence he noticed that the glass cover appeared to have been tampered with as the stickers which the power company puts on the meter to indicate tampering were crooked and the dial hands were not calibrated correctly. He also testified that the base had been broken away from the meter.

Ganun then produced defendant's actual meter and demonstrated to the jury how it had been tampered with by pointing to the areas on the meter which were indicative of such acts. Photographs were also taken of the meter at the time that Ganun and Investigator Barry Bittenmaster were inspecting the premises. These photographs were introduced to the jury at trial.

Investigator Bittenmaster testified that on October 29, 1985, as a result of being assigned to investigate a suspected theft of electricity, he proceeded to 46 Larchwood Avenue in Oakhurst. Bittenmaster said that he had investigated several hundred similar incidents and, based on his training and experience, he detected an erratic and untraceable pattern in the amount of energy usage by defendant and his family. Bittenmaster conducted a full survey of the grounds in order to determine whether there was an alternative energy source, but was unable to find one. The photographs of the residence supported this Conclusion. Bittenmaster also examined the meter and found that the seal which connected the top cover of the meter to the main box was broken and replaced in an apparent attempt to avert any suspicion of tampering. Bittenmaster also testified that another seal, whose purpose is to preserve the integrity of the internal meter workings, had been removed and

was found in the bottom of the meter pan. Based upon the average consumption of defendant's residence and the average for the area, Bittenmaster estimated that between June 1978 and June 1986, defendant used, but failed to pay for, approximately $23,000 worth of electricity, which authorized the indictment pursuant to N.J.S.A. 2C:20-8.

In October 1985, the meter was removed, tagged and transported to the meter testing facility for examination by meter tester William Kennedy. Kennedy tested the meter and found it to be accurate.

Defendant admitted that he had lived at 46 Larchwood Avenue from June 1978 until the present. He stated that his job kept him away from his home and enabled him to return only for very brief visits throughout the year. Defendant indicated that the primary residents of 46 Larchwood Avenue were his wife and children. He also stated that in order to conserve heat in the house the family placed heaters in the children's bedrooms. Defendant said that it was necessary to conserve heat in the winter months because the house had a cathedral ceiling in its living room and its dining room ceiling was 12 to 14 feet high.

On February 25, 1986, Bittenmaster, together with members of JCP & L, the Monmouth County Prosecutor's Office and the Ocean Township Police Department executed a warrant to survey the premises. The warrant enabled JCP & L to conduct a load survey of the premises.

Defendant contends that the trial court erred in admitting computer printouts, generated by JCP & L, which identified him as the customer of record for 46 Larchwood Avenue in Oakhurst. Defendant contends that the foundation laid for the documents' admission was inadequate under Monarch Fed. Sav. & Loan Assn. v. Genser, 156 N.J. Super. 107, 383 A.2d 475 (Ch.Div.1977).

Evid.R. 63(13) sets forth the business entry exception to the hearsay ...

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