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State v. Roth

March 29, 1996


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

Approved for Publication March 29, 1996.

Before Judges Havey, D'Annunzio and Conley. The opinion of the court was delivered by Havey, P.j.a.d.

The opinion of the court was delivered by: Havey

The opinion of the court was delivered by HAVEY, P.J.A.D.

The principal question raised by this appeal is whether defendant's threat to file a motion to set aside a sheriff's sale unless the successful bidder paid him $2,000 constitutes attempted theft by extortion under N.J.S.A. 2C:20-5g. We conclude that it does and accordingly affirm defendant's conviction.

On December 15, 1993, an Ocean County Grand Jury returned Indictment No. I-93-12-01024, charging defendant with second-degree theft by extortion, contrary to N.J.S.A. 2C:20-5g. Defendant's motion to proceed pro se was denied on July 5, 1994. After a four-day jury trial, which commenced on July 11, 1994, defendant was found guilty of second-degree attempted theft by extortion. Thereafter, he was sentenced to a custodial term of seven years.

In his appellate and pro se supplemental briefs, defendant advances four central contentions: (1) defendant's business tactics, issuing legitimate threats to sue to encourage the settlement of a legal matter, are not proscribed by N.J.S.A. 2C:20-5g; (2) N.J.S.A. 2C:20-5g is unconstitutionally vague on its face and as applied to defendant; (3) the trial Judge improperly denied defense counsel's request to supplement the model jury instruction with relevant portions of the 1971 Commentary *fn1; and (4) the trial Judge erred by refusing to permit defendant to exercise his Sixth Amendment right of self-representation.

The State adduced evidence at trial that on June 30, 1992, Thomas Bergstrom, the lone participant in a sheriff's sale, purchased property formerly owned by Maureen Perry for $32,000. According to Ocean County Undersheriff William Sommeling, defendant attended this sale, but did not bid on the property. Sommeling testified that at no time before, during or after the purchase did defendant voice any concern or objection regarding the "conduct" of the sale.

Bergstrom testified that defendant cornered him following the auction and threatened to file a motion to set aside the sale if defendant was not allowed "to get involved." Interpreting defendant's remarks as a demand for money in exchange for an agreement not to file his impending action, Bergstrom admonished defendant to "get out of his face." On July 21, 1992, defendant successfully moved to set aside the sale. *fn2

On August 18, 1992, Bergstrom and defendant attended an Ocean County sheriff's sale of property owned by Julia Badolato. Mr. Bergstrom submitted the highest bid, $19,700, on behalf of his father, Carl, while defendant again declined to bid.

Toward the end of August 1992, defendant began phoning Bergstrom's office, but was unable to communicate with him directly until September 1, 1992. In the meantime, Bergstrom informed the Ocean County Undersheriff that defendant was attempting to reach him and expressed a concern that defendant might try to exact money from him by threatening to undo the Badolato sale. On August 31, 1992, the County Prosecutor's Office authorized Bergstrom to record his phone conversations with defendant.

On September 1, 1992, Bergstrom received a telephone call from defendant, during which the men agreed to convene at noon on the grounds of Ocean County Park in Lakewood to discuss the Badolato sale. Bergstrom was outfitted with a recording device for the meeting. At the park rendezvous, defendant demanded $2,000 for a promise not to pursue a motion to set aside the sale. *fn3 Bergstrom acceded to defendant's $2,000 demand, and thereafter the men arranged a 3:00 p.m. meeting at the Ocean County Library to exchange money and memorialize the agreement. At the library, defendant pocketed Bergstrom's cash and signed a receipt acknowledging payment. Upon exiting the building, defendant was arrested by detectives from the Ocean County Prosecutor's Office.

Defendant first argues that his motion for a judgment of acquittal at the end of the State's case should have been granted. He argues that, considering the State's proofs most indulgently, a reasonable jury "could not have found every element of theft by extortion was proven beyond a reasonable doubt." See State v. Reyes, 50 N.J. 454, 459, 236 A.2d 385 (1967).

N.J.S.A. 2C:20-5 reads in pertinent part:

A person is guilty of theft by extortion if he purposely and unlawfully obtains property of another by extortion. A person extorts if he purposely threatens to:

g. Inflict any other harm which would not substantially benefit the actor but which is calculated to ...

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