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State v. Underwood

December 26, 1995

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DERRICK J. UNDERWOOD, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Salem County.

Approved for Publication December 26, 1995.

Before Judges Dreier, A.m. Stein and Cuff. The opinion of the court was delivered by A.m. Stein, J.A.D.

The opinion of the court was delivered by: Stein

The opinion of the court was delivered by A.M. STEIN, J.A.D.

We reverse defendant's conviction for receiving stolen property and remand for a new trial.

On the evening of April 6, 1993, Elena Gelletly loaned defendant her car so that he could take his girlfriend to dinner. Defendant never returned with the car. Gelletly reported it stolen about two days later.

During the next week, defendant called Gelletly twice, telling her that he had driven the car to New Jersey, and intended to drive it back, but that he needed money to buy gas. He asked Gelletly if she could wire him the money. Gelletly told defendant she had reported the car stolen, but said everything would be all right if he returned the car.

On April 15, Officer Harman of the Carneys Point Police Department located the car at the Twin Bridge Apartment Complex pursuant to an anonymous tip. The police apprehended defendant at one of the apartments. Defendant claimed he had been visiting a friend who was going to give him some money and told the police that he borrowed the car from Gelletly, had since spoken with her and was making arrangements to bring the car back.

Defendant claims the trial Judge failed to instruct the jury of the State's burden to prove defendant purposely deprived Gelletly of her property, failed to instruct the jury concerning defendant's intent to return the vehicle and failed to adequately define stolen property.

Because defendant did not object to the trial Judge's instructions, the standard of review is plain error. R. 2:10-2. Defendant must show "a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336, 273 A.2d 1 (1971). Nevertheless, "erroneous instructions are almost invariably regarded as prejudicial." State v. Vick, 117 N.J. 288, 289, 566 A.2d 531 (1989).

N.J.S.A. 2C:20-7a defines the crime of receiving stolen property:

A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner.

[N.J.S.A. 2C:20-7a.]

Defendant submits that the intent to permanently deprive a person of his or her property is an essential element of receiving stolen property.

A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, immovable property of another with purpose to deprive him thereof.

[N.J.S.A. 2C:20-3a.]

To deprive another of his or her property means:

(1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value . . . or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it.

[N.J.S.A. 2C:20-1a.]

Proof that the property was stolen is not necessarily an element of the crime of receiving. In State v. Bujan, 274 N.J. Super. 132, 133, 643 A.2d 628 (App. Div. 1994), the New Jersey State Police ran a "sting operation" resulting in the convictions of two defendants for receipt of stolen property. A police detective offered and sold defendants prescription drugs which the detective said were stolen. Ibid. The drugs were not actually stolen but were entrusted to the officers for purposes of the sting. Ibid. We held that a person can be convicted of receiving stolen property even though the property was not actually stolen, so long as the defendant believes the property was actually or probably stolen. Ibid.

However, when the defendant charged with receiving is the same person who initially took the property, it is impossible to define this belief without determining defendant's intent toward the property. In State v. Cole, 204 N.J. Super. 618, 621, 499 A.2d 1030 (App. Div. 1985), defendant's employer gave defendant permission to use her car for two weeks. Defendant did not return the car and his employer reported it stolen. Ibid. Over two months later, defendant was found in possession of the car in New Jersey and was later convicted of receiving stolen property. Ibid. We upheld the conviction, holding defendant's retention of the car almost two months beyond the originally agreed date supported the inference that he intended to permanently deprive the owner of her property. Id. at 629.

We conclude that in order to convict for receiving stolen property under N.J.S.A. 2C:20-7a, when defendant is the same person who allegedly stole the property, the State must prove that the defendant intended an unlawful taking. In other ...


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