(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This appeal concerns application of the incomplete mistake-of-fact defense, and whether the trial court should have charged a crime that is not a lesser-included offense of any of the charges in the indictment.
Acting on a tip, on August 25, 1995, Port Authority police officers at Newark Airport detained Jose Pena after his arrival on a flight from Houston, Texas. A DEA agent in Houston had informed Port Authority officers that an x-ray taken during flight check-in indicated that Pena's suitcase contained several bundles of an apparent controlled dangerous substance. When questioned by Port Authority officers about his suitcase, Pena stated he had done most of the packing himself and that the bag contained "clothes and things." When asked directly whether the suitcase contained drugs, Pena responded, "I don't know."
Pena consented to the suitcase's search, which revealed a sleeping bag wrapped around thirteen plastic bundles of seventy-five percent pure cocaine weighing approximately fifteen kilograms (over thirty-three pounds). The cocaine had an estimated street value of $800,000. Pena was indicted on charges of third-degree possession of CDS in violation of N.J.S.A. 2C:35-10a(1), and first-degree possession with intent to distribute in violation of N.J.S.A. 2C:35-5b(1).
Pena's initial conditional plea to the charges was vacated on appeal, the Appellate Division holding that the plea lacked a factual basis because Pena maintained his innocence by his assertion that he did not know that the suitcase contained cocaine. State v. Pena, 301 N.J. Super. 158 (App. Div.), certif. denied,
The opinion of the court was delivered by: Justice LaVECCHIA
On certification to the Superior Court, Appellate Division.
This appeal concerns application of the "incomplete" mistake-of-fact defense available pursuant to N.J.S.A. 2C:2-4b. Defendant Jose Pena was charged with possession of cocaine and possession of cocaine with intent to distribute. His defense was that he believed the suitcase he was transporting contained stolen fur coats, not cocaine. Defendant requested that the jury be charged on his mistake-of-fact defense that, if it accepted his mistaken belief, it could convict him of the uncharged, non-lesser included offense of receipt of stolen property. We hold that it was error for the trial court to have refused defendant's request, notwithstanding that the crime of receiving stolen property is not a lesser-included offense of either charge in the indictment returned against defendant. We are constrained, therefore, to reverse and remand for a new trial.
Acting on a tip, on August 25, 1995, Port Authority police officers at Newark Airport detained defendant after his arrival on a flight from Houston, Texas. A United States Drug Enforcement Agency (DEA) agent stationed in Houston had informed Port Authority officers that an x-ray taken during flight check in indicated that defendant's suitcase contained several bundles of an apparent controlled dangerous substance. When questioned by the Port Authority officers about his suitcase, defendant stated that he had done "most of" its packing and that the bag contained "clothes and things." When asked directly whether the suitcase contained any drugs, defendant responded, "I don't know."
Defendant consented to the suitcase's search. According to the State's witnesses, defendant appeared unsurprised when that search revealed that the suitcase contained a sleeping bag wrapped around thirteen plastic bundles of seventy-five percent "pure" cocaine weighing approximately fifteen kilograms (roughly equivalent to thirty-three and one-half pounds). The cocaine was estimated to have a street value of $800,000. In addition to the drugs, the suitcase contained a new pair of tennis shoes, two new towels, and six empty hangers. Defendant was indicted for third-degree possession of a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-10a(1) (Count I), and first-degree possession of CDS with intent to distribute, in violation of N.J.S.A. 2C:35-5b(1) (Count II).
Defendant's initial conditional plea to the charges was vacated on appeal. State v. Pena, 301 N.J. Super. 158, 160-64 (App. Div.), certif. denied, 151 N.J. 465 (1997). The Appellate Division held that the plea lacked a factual basis because defendant had maintained his innocence by his assertion that he did not know that the suitcase contained cocaine. Ibid. At trial, defendant's case consisted of his mistake-of-fact defense. As background to the events that led to his arrest, defendant testified that in 1991 he had worked in a clothing store and had occasion to frequent the area of Broadway and 142nd Street in New York City. There he became acquainted with a man named "Rudolpho Santana." Defendant knew that Santana sold stolen objects such as televisions, VCRs, and expensive clothing, but he claimed he did not know that Santana sold drugs.
In August 1995, according to defendant, Santana engaged him to fly to Houston and obtain some stolen fur coats. Defendant's instructions were to pick up the coats, each worth approximately $5,000 to $6,000, and return with them via Newark Airport. In exchange, defendant would be paid $2,000. Santana supplied defendant with a ticket, purchased with cash, for a flight departing from LaGuardia Airport to Houston.
When he arrived at the Houston airport, defendant was met by a man (known to him only as "Antonio") and taken to a house. There, defendant obtained six coats that he described as medium size, full length and "furry." He testified that he packed the six coats into a single suitcase, aware at the time that he was engaging in the criminal activity of receiving stolen property. Although defendant admitted to placing the coats in the suitcase, he claimed that he did not pack any of the other items later found in the suitcase, including the six empty hangers.
Defendant stayed overnight at the house and the next morning was taken to the Houston airport for a flight to Newark. His one-way airline ticket again was purchased for him with cash. According to defendant, his suitcase was placed in the trunk of the car for the drive to the airport but the record is unclear as to when that occurred. At the terminal, defendant checked the suitcase for the flight and, upon his arrival in Newark at the appropriate luggage carousel, he claimed the suitcase that bore his name and claim number. The Port Authority officers, who had been observing him since he disembarked the plane, then approached him for questioning.
As part of its case, the State presented an expert who explained that a courier knows when he or she is carrying CDS because, even if the courier does not know the actual drug being transported, remuneration is based on the weight (customarily "$1,000 a [kilo]") and not the identity of the substance. Defendant was carrying approximately fifteen kilograms of cocaine; therefore he could have anticipated receiving at least $15,000. The State emphasized the unlikelihood that defendant did not know what he actually was carrying and its value to him.
At the close of the evidence defendant requested a jury instruction on the incomplete mistake-of-fact defense available pursuant to N.J.S.A. 2C:2-4b. Defendant acknowledged that the "mistaken" offense, receipt of stolen property in violation of N.J.S.A. 2C:20-7, was not a lesser-included offense of either of the charges in his indictment, but he did not contend that the indictment was flawed for not including the charge. Defendant asserted that if the jury believed his testimony, he should be held criminally culpable only for the "different and lesser offense" he believed he was committing because under N.J.S.A. 2C:2-4b, "there still can be a downgrading of an offense..., and also a slight shift... to... the one that was committed."
The trial court denied the requested instruction. It viewed the N.J.S.A. 2C:2-4b mistake-of-fact defense as inapplicable to a non-lesser included offense and held that defendant was restricted to arguing that his mistaken belief negated the requisite state of mind for a finding of guilt on the cocaine possession charges. The court charged the jury on the elements of possession and possession with intent to distribute. No instruction was given in respect of defendant's mistake-of-fact defense; rather, the charge tracked the model jury instruction, without any molding to the facts related to that defense. Defendant registered no objection to the charge as given except to preserve for appeal the denial of the earlier charge request.
The jury found defendant guilty on both counts. The court merged the charges and sentenced defendant to the maximum term for conviction of first-degree possession with intent to distribute: twenty years' imprisonment with a ten-year period of parole ineligibility. The Appellate Division affirmed in an unpublished opinion. It agreed with the trial court that defendant's asserted mistake of fact related to his state of mind. Based on that mistaken belief, defendant could contest whether he knowingly possessed, and possessed with intent to distribute, cocaine. However, because the crime of receiving stolen property, N.J.S.A. 2C:20-7, is not a lesser-included offense to either of the charges in the indictment, the Appellate Division concluded that the trial court correctly declined to charge the jury on mistake of fact under N.J.S.A. 2C:2-4b.
We granted defendant's petition for certification "limited to the issues arising out of the trial court's denial of the request to charge the jury in respect of 'mistake of fact.'" 175 N.J. 431 (2003).
This case concerns a matter of first impression: whether a defendant may avail himself of the incomplete mistake-of-fact defense available under Section 2-4b of the New Jersey Code of Criminal Justice (Code) when the mistaken belief concerns commission of a non-lesser included offense to the offenses charged. Mistake of fact has been characterized as an area of law rife with confusion. See 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.1(a) at 575 (2d ed. 1986)(LaFave & Scott) (observing that "[n]o area of the substantive law has traditionally been surrounded by more confusion than that of ignorance or mistake of fact or law"). Thus, faced with a novel question in this uncertain area of the law affecting criminal culpability, we begin at bedrock, namely, with the accepted requirements for criminal liability: proof of "a voluntary act and a culpable state of mind [are] the minimum conditions" for imposing criminal liability. State v. Sexton, 160 N.J. 93, 98 (1999) (citing N.J.S.A. 2C:2-1, -2).
The Code, like its "'conceptual source,'" the Model Penal Code (MPC), Sexton, supra, 160 N.J. at 94 (quoting Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988)), provides generally that "no person should be guilty of an offense unless the person 'acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.'" Sexton, supra, 160 N.J. at 99 (emphasis added) (quoting N.J.S.A. 2C:2-2a). See also MPC § 2.02(1) (same). In respect of the specific CDS possession offenses in issue, the Code provides that it is unlawful for an unauthorized person to "knowingly or purposely" possess CDS, whether with or without intent to distribute. N.J.S.A. 2C:35-10a, -5a(1). "A person acts purposely with respect to the nature of his conduct... if it is his conscious object to engage in conduct of that nature or cause such result." N.J.S.A. 2C:2-2b(1). "A person acts knowingly with respect to the nature of his conduct... if he is aware that his conduct is of that nature." N.J.S.A. 2C:2-2b(2). A person voluntarily possesses an object if he "knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." N.J.S.A. 2C:2-1c. As the court below duly noted during the first appeal in this matter, when used in our criminal statutes, "[p]ossession... signifies 'a knowing, intentional control of a designated thing, accompanied by a knowledge of its character.'" Pena, supra, 301 N.J. Super. at 162-63 (emphasis added) (quoting State v. Montesano, 298 N.J. Super. 597, 612 (App. Div.), certif. denied, 150 N.J. 27 (1997)). See also State v. McCoy, 116 N.J. 293, 298 (1989) ("In a broad sense, the term 'possession' denotes facts pertaining to the relationship between a person and an item of property, as well as the consequences that attach to those facts.").
In this case, then, a jury could not hold defendant criminally liable for the CDS possession offenses with which he was charged unless it found that he knew or was aware, at a minimum, that he possessed CDS.*fn1 Pena, supra, 301 N.J. Super. at 162-63. See also Model Jury Charge (Criminal), Possession (N.J.S.A. 2C:2-1) (1988); Model Jury Charge (Criminal), Unlawful Possession of a Controlled Dangerous Substance (N.J.S.A. 2C:35-10) (1988); and Model Jury Charge (Criminal), Possession of a Controlled Dangerous Substance with Intent to Distribute (N.J.S.A. 2C:35-5) (1992). Culpability requirements would appear to render that result self-evident. However, we are required to interpose into that basic culpability analysis the mistake-of-fact defense in N.J.S.A. 2C:2-4.
Patterned after MPC § 2.04, N.J.S.A. 2C:2-4 provides in relevant part:
a. Ignorance or mistake of fact as to a matter of fact or law is a defense if the defendant reasonably arrived at the conclusion underlying the mistake and:
(1) It negatives the culpable mental state required to establish the offense; or
(2) The law provides that the state of mind established by such ignorance or mistake ...