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State v. Portuondo

Decided: November 30, 1994.

STATE OF NEW JERSEY, APPELLANT-CROSS RESPONDENT,
v.
RICHARD PORTUONDO, RESPONDENT-CROSS APPELLANT.



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

Before Judges Brody, Long and Levy

Long

The opinion of the court was delivered by

LONG, J.A.D.

Ricardo Portuondo and his co-defendant, James Shaw, were charged, under Essex County Indictment Number 1215-3-92, with

third degree conspiracy in violation of N.J.S.A. 2C:5-2 (count one); third degree theft by receiving stolen property in violation of N.J.S.A. 2C:20-7 (counts two, three, four, five and six); third degree possession of a motor vehicle with an altered identification number in violation of N.J.S.A. 2C:17-6 (count seven); and third degree trafficking in stolen property, in violation of N.J.S.A. 2C:20-7.1 (count eight). A jury trial followed at which counts three and five were dismissed. Defendant was found not guilty on count one but convicted on the remaining charges. The co-defendant was convicted on one count of receiving stolen property. (count two).

The trial Judge sentenced defendant on each conviction to a concurrent four year, probationary term contingent on service of one hundred days in the county jail. An appropriate Violent Crimes Compensation Board penalty was also imposed.

At sentencing, the trial Judge also ruled on a reserved motion defendant had filed at the end of the State's case to dismiss count eight (fencing) because the fencing statute contains neither a penalty provision nor language to suggest that the general penalty provision for theft (N.J.S.A. 2C:20-2b) is applicable.

In granting defendant's motion, the Judge relied on the legislative failure to specifically incorporate the penalty provisions of N.J.S.A. 2C:20-2b into the fencing statute. In a supplemental opinion, the Judge recognized that the legislature, in enacting N.J.S.A. 2C:20-7.1, "intended" the statute to have both criminal and civil impact. He concluded however, that the statute has no penalty provision and the "failure to designate fencing to be a form of theft renders N.J.S.A. 2C:20-2, which establishes the grades for theft offenses, inapplicable to it." The State appeals, contending that:

THE TRIAL COURT ERRED WHEN IT HELD THAT N.J.S.A. 2C:20-7.1 DOES NOT OPERATE AS A CRIMINAL STATUTE.

Defendant cross-appeals:*fn1

POINT I:

THE TRIAL JUDGE CORRECTLY GRANTED DEFENDANT'S MOTION FOR JUDGMENT N.O.V. AS TO HIS CONVICTION FOR FENCING BECAUSE N.J.S.A. 2C:20-7.1, WHICH CONTAINS NO PENALTY PROVISION, MAY NOT BE REGARDED AS A CRIMINAL STATUTE.

POINT II:

THE JURY INSTRUCTION THAT THE REQUISITE MENTAL STATE FOR DEALING IN STOLEN PROPERTY UNDER N.J.S.A. 2C:20-7.1b WAS KNOWING RATHER THAN PURPOSEFUL AND THE OMISSION OF AN INSTRUCTION THAT DEFENDANT MUST KNOW THAT THE PROPERTY WAS STOLEN DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1,9,10. (Not Raised Below).

POINT III:

THE JUDGE'S FAILURE TO INSTRUCT THE JURORS CONCERNING ALL ELEMENTS OF N.J.S.A. 2C:17-6b DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947). ART I, PARS. 1, 9, 10.

POINT IV:

THE OMISSION OF A DEFINITION OF "UNLAWFUL PURPOSE" FROM THE JURY INSTRUCTIONS FOR POSSESSION OF A MOTOR VEHICLE WITH IDENTIFICATION NUMBER REMOVED [N.J.S.A. 2C:17-6 b] DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).

POINT V:

THE RULING THAT DEFENDANT'S TESTIMONY COULD BE IMPEACHED WITH A PRIOR CRIMINAL CONVICTION VIOLATED HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, ...


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