Before Judges Wallace, Jr., and Lesemann.
The opinion of the court was delivered by: Lesemann, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 1999
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
This appeal raises two significant issues, one relating to an alleged overcharging of the jury respecting receipt of a stolen automobile (N.J.S.A. 2C:20-7) and the lesser offense of "joyriding" (N.J.S.A. 2C:20-10); and the other dealing with the elements of proof necessary to convict under either of those statutes. We conclude that although defendant was indicted for the more serious offense, and the trial court charged the jury respecting that offense, the court could nevertheless thereafter vacate defendant's conviction for receipt of a stolen automobile and find defendant guilty of the lesser joyriding offense which had also been submitted to the jury. We conclude further, that the evidence was sufficient to sustain a conclusion that defendant knew the vehicle in question was being operated without the consent of its owner (even though there was no proof that the vehicle had been stolen), and thus we affirm defendant's conviction and sentence for joyriding.
In the early morning hours of August 4, 1996, two Newark police officers on routine patrol were looking for a particular Honda automobile. They saw the automobile approaching them but when the driver apparently observed the police car, the Honda turned and proceeded to drive the wrong way on a one way street. The police attempted to stop the vehicle, but the car drove away and a high speed chase ensued. After some miles, the vehicle crashed into a tree, and three or four men ran from the car, with two remaining in the rear seat. Defendant, who was eventually captured, was one of those who ran. The police testified that the vehicle had been driven by one Al-Raheem Crawley--not by defendant. While the police were able to testify that defendant had been in the car, they could not specify which seat he occupied. They did say that when he was apprehended, he gave his name as Subor Harris, and said he was a minor, although he was not. The police also testified that the ignition had been ripped out of the car and the ignition lock had been "popped." The car was being driven without an ignition key.
Defendant was charged under a multi-count indictment which included receiving stolen property (the Honda automobile), (N.J.S.A. 2C:20-7), and fourth degree resisting arrest (N.J.S.A. 2C:29-2) which the trial court reduced to a disorderly persons offense during trial.*fn1 With the agreement of both sides, the trial court also instructed the jury on the joyriding statute, and told the jury that if it did not find defendant guilty of receiving stolen property, it could consider his guilt of that lesser offense. However, the jury found the defendant guilty of receiving stolen property and thus did not consider the joyriding offense.
Following trial, defendant moved to set aside the verdict, asking that the conviction be vacated in its entirety or, in the alternative, that it be reduced to the lesser joyriding offense. His primary arguments were that the State did not prove defendant had ever "received" the vehicle since he had no control over it, and that the State had not proved the vehicle was stolen. The court, however, concluded that although there had been no proof that the vehicle was actually stolen, there was proof from which the jury could conclude that defendant knew the vehicle was "probably stolen," and that was sufficient. The court agreed with the defendant on his other argument:
that there was no proof that defendant had control over the vehicle; that accordingly he could not be found guilty of receiving the stolen automobile; but he could be found guilty of the lesser joyriding offense. The court thus vacated the jury's verdict and reduced defendant's conviction to one for joyriding. On that basis, the court then sentenced the defendant to a term of eighteen months imprisonment.
On appeal, defendant raises two arguments:
POINT I - THE TRIAL COURT COMMITTED PLAIN ERROR IN INSTRUCTING THE JURY AS TO THE CRIME OF RECEIVING STOLEN PROPERTY BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION.
POINT II - THE COURT BELOW COMMITTED ERROR IN ENTERING A JUDGMENT OF CONVICTION OF THE FOURTH DEGREE CHARGE OF UNLAWFUL TAKING OF A MEANS OF CONVEYANCE AND IN FAILING TO FULLY GRANT DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO N.J.S.A. 3:18-2 BECAUSE THE EVIDENCE INTRODUCED AT TRIAL WAS INSUFFICIENT TO SUPPORT A CONVICTION.
The State does not disagree with defendant's argument that it failed to prove defendant guilty of receiving stolen property. Impliedly, it acknowledges it did not show that defendant had control of the automobile and thus that he had "received" the vehicle within the meaning of the applicable statute, N.J.S.A. 2C:20-7. See State v. McCoy, 116 N.J. 293, 298-303 (1989) (guilt of receiving stolen automobile requires proof of "possession" of the automobile, and "possession" requires "intentional control and dominion"; a "mere passenger is not in possession of a car"). The State argues, however, that the jury's verdict demonstrates that it found all the elements necessary for a conviction under the joyriding statute, N.J.S.A. 2C:20-10, and thus the ...