On appeal from the Superior Court, Law Division, Hudson County.
Before Judges Gaulkin, R.s. Cohen and D'Annunzio.
The opinion of the court was delivered by
A person who receives another's property, believing that it probably had been stolen, is guilty of a violation of N.J.S.A. 2C:20-7a, whether or not the property was stolen in fact. The Law Division order, dismissing Counts Two, Three and Four of the indictment against defendants on the thesis that the property had not been stolen in fact, is therefore reversed, and the counts are reinstated.
The prosecution results from a "sting operation." The State was ready to prove that a New Jersey State Police detective posed as a pharmaceutical warehouse employee and offered defendants stolen prescription drugs; in a well-documented series of contacts, the detective discussed prices and deliveries of stolen drugs with defendants, and ultimately delivered and was paid for prescription drugs on three occasions. The drugs actually had not been stolen, despite the detective's statements to defendants that they were, but rather had been entrusted to law enforcement officers for the purpose of the "sting operation." The three sales were for over $75,000, and the drugs, according to the State, were worth some $240,000.
N.J.S.A. 2C:20-7a states in pertinent part:
A person is guilty of theft if he knowingly receives or brings into this state moveable property of another knowing that it has been stolen or believing that it has probably been stolen.
The Law Division Judge held that the property had to be stolen in fact, and that the alternatives, "knowing" or "believing," relate solely to the mind of the person charged: he need not know the stolen property was stolen; it is enough that he believe it probably was stolen.
N.J.S.A. 2A:139-1, the predecessor statute, criminalized only possession of goods that were
stolen from any other person or taken from him by robbery or otherwise unlawfully or fraudulently obtained, or converted contrary to law. . . .
Prosecution under N.J.S.A. 2A:139-1 therefore required proof that the property was actually stolen. State v. Kimbrough, 109 N.J. Super. 57, 64, 262 A.2d 232 (App. Div. 1970). N.J.S.A. 2C:20-7a does not expressly say the property must have been stolen, and it introduces the distinction between the actor's knowledge and belief in that regard. The question is whether the new and ...