On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Coleman, J.h., Shebell and Conley. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
The critical issue presented in this appeal is whether the owner of a car can be convicted as an accomplice of someone who burned the car at the request of the owner. We hold that the owner may be legally accountable for the conduct of the arsonist.
In a joint trial, defendant Craig Williams and co-defendant David DelGado were found guilty of certain criminal offenses associated with the burning of a 1988 black Nissan Maxima automobile owned by defendant Williams. Defendant was found guilty of second-degree aggravated arson, contrary to N.J.S.A. 2C:17-1a, as an accomplice under N.J.S.A. 2C:2-6 (Count III) and third-degree arson involving a barn, contrary to N.J.S.A. 2C:17-1b, (Count IV), also based on accomplice liability. Williams was acquitted of hiring someone to burn his car, conspiracy to burn his car and burning his car to collect insurance. The Judge entered a judgment of acquittal on Count IV notwithstanding the verdict because there was no evidence that Williams wanted or even knew the barn would be burned. He was sentenced on Count III to a custodial term of four years; the Judge stayed execution of the sentence pending this appeal.
In this appeal, defendant Williams raises the following contentions:
I. THE THIRD COUNT OF THE INDICTMENT ACCUSING DEFENDANT OF SETTING A FIRE FOR THE PURPOSE OF DESTROYING HIS OWN PROPERTY FAILED TO CHARGE CONDUCT CONSTITUTING THE OFFENSE OF AGGRAVATED ARSON; ACCORDINGLY, THE CONVICTION OF DEFENDANT FOR AGGRAVATED ARSON UNDER THAT COUNT CANNOT STAND.
II. THE CONVICTION OF DEFENDANT WILLIAMS FOR AGGRAVATED ARSON UNDER COUNT III OF THE INDICTMENT CANNOT BE SUSTAINED
ON THE THEORY THAT A LIEN ON THE AUTO DESTROYED BY FIRE MADE THE AUTO "PROPERTY OF ANOTHER" WITHIN THE INTENDMENT OF THE ARSON STATUTE SINCE SUCH A THEORY WAS NOT PRESENTED TO THE GRAND JURY, WAS NOT PLED IN THE INDICTMENT, AND WAS NOT CHARGED TO THE JURY.
The State's evidence presented to the jury disclosed that defendant-Williams owned a 1988 Nissan Maxima which was insured. He and co-defendant DelGado were New Jersey State Troopers in 1988 and were assigned to the Flemington barracks. Williams told DelGado that he was looking for someone to burn his Maxima. On September 24, 1988, DelGado contacted a good friend, William Starr,*fn1 and told him that he had a friend who wanted to "get rid of his car." Starr met with DelGado and Williams at DelGado's home. Starr discussed the matter with Williams, and Starr agreed to take the car to New York and burn it without removing any of its parts. Starr and Williams agreed upon a price of $300 for burning the car the next day. Williams agreed to drive the car to DelGado's house the next morning -- September 25, 1988 -- and DelGado would call Starr. DelGado was to collect the $300 from Williams.
Williams dropped the car off at DelGado's home the morning of September 25, 1988 as planned and DelGado called Starr to pick up the car. Starr took Tommy McNamara with him to pick up the Maxima. Upon his arrival at DelGado's home, Starr found the Maxima parked out front. DelGado gave Starr the keys to the Maxima and Starr told DelGado that he would call him when the job was completed.
Starr and McNamara drove the Maxima to Englishtown where they did some shopping. When they returned from Englishtown, they began to strip the car and stored the parts in
a shed on McNamara's property. Once the stripping was terminated, McNamara decided that he did not wish to go with Starr to New York. That prompted Starr to pick up another friend, John Hoag, who in turn picked up Nelson DeJesus. Both Hoag and DeJesus were informed of Starr's plans and they were taken to McNamara's house. In their presence, Starr drove the Maxima toward the turnpike with Hoag and DeJesus following in Starr's car. However, Starr decided not to go to New York because the car looked too suspicious in its semi-stripped condition.
Starr drove the Maxima to a barn located at 4 Woodside Road, East Windsor Township, New Jersey where Starr, Hoag and DeJesus removed the tires, battery and remaining seats. They filled the car with some debris and threw a match into the car. The ensuing fire burned the car and the barn. The additional parts stripped from the car were taken to McNamara's house and placed in the same shed as the previous parts. Starr then notified DelGado that the job had been completed. A few days after the car was burned on September 25, 1988, DelGado gave Starr $200 for the job, stating that the money came from Williams.
The day after the fire, McNamara read in a newspaper that a car fitting the description of the one he saw Starr driving had been burned, he called Sergeant Robert Shainer of the Trenton Police Department.
A few days after September 26, 1988, Sergeant Charles Felter of the Criminal Investigation Bureau in the Trenton Police Department contacted McNamara and he agreed to cooperate in the arson investigation. In furtherance of that investigation, McNamara contacted Starr and told him he had a friend interested in buying the parts stripped from the Maxima. Starr agreed, but called DelGado before the meeting because Starr was suspicious that the meeting might be a "set-up." DelGado ...