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State v. Gary


April 8, 2008


On appeal from Superior Court of New Jersey, Law Division, Union County, Ind. No. 04-09-1101.

Per curiam.


Submitted March 4, 2008

Before Judges Grall and Chambers.

Co-defendants Kareem Gary and Anderson Servil were convicted of receiving a stolen motor vehicle in violation of N.J.S.A. 2C:20-7, after a joint trial. Each received a four year sentence to state prison. They have filed separate appeals, which we now consolidate.

At trial, the State presented two witnesses, the victim and the arresting police officer. The victim, a resident of Linden, had parked his Chevrolet Monte Carlo in front of his house and locked it at about 5:00 p.m. on May 22, 2004. At around 10:45 p.m. he saw that the vehicle was missing and reported the stolen car to the police. At about 3:40 a.m. the following morning, the police officer spotted the vehicle in Elizabeth. When it was pulled over, Charles Christian was seated as the driver, Servil was the front seat passenger, and Gary was the back seat passenger. The vehicle was a two-door rather than a four-door car. The plastic casing for the steering column was missing and its broken pieces were scattered on the front floor of the car, the wiring from the steering column was hanging, and no keys could be used to drive the car because the ignition was missing.

All three occupants of the vehicle lived in Linden, and Servil lived on the same street as the victim. The victim had testified that he did not know any of the occupants of the vehicle nor had he given them permission to take it.

At the end of the State's case, the trial court denied the defendants' motions to dismiss, noting that the defendants were found in possession of the vehicle shortly after it was reported stolen and that a jury could infer from the condition of the vehicle that the defendants knew the car was stolen.

Gary was the sole witness for the defendants. He testified that on the evening in question, he and Servil had been in Elizabeth visiting two girls, and that while waiting for a cab to take them home, he saw Christian, a friend of his family, drive by. Christian stopped and agreed to give them a ride home. Gary testified that he did not know the car was stolen. He stated that Christian's father also had a Chevy Monte Carlo, and that the street was dark at the location where they got into the car. He also said that when Servil asked Christian whose car it was, Christian did not respond. According to Gary, he and Servil were in the car less than ten minutes before it was stopped by the police.

At the conclusion of the trial, both defendants moved for a directed verdict, and the motions were denied by the trial court. The jury found both defendants guilty of receiving stolen property.

On appeal, Gary contends that the trial court improperly denied his motion to acquit at the end of the State's case and that the trial court's jury charge was not correct. Servil maintains that the verdict was against the weight of the evidence, and as a result, contends that his conviction should be reversed.

We now turn to Gary's appeal of the denial of his motion to acquit at the end of the State's case. At the conclusion of the presentation of evidence in the State's case, a defendant may move for an acquittal which the trial court shall grant "if the evidence is insufficient to warrant a conviction." R. 3:18-1.

When deciding the motion, the trial court must "determine 'whether, viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (quoting from State v. Reyes, 50 N.J. 454, 459 (1967)). If no reasonable jury could find guilt beyond a reasonable doubt based on that evidence, then the motion must be granted. On appeal, we apply the same standard as the trial court. State v. Moffa, 42 N.J. 258, 263 (1964).

In order to prove a defendant guilty of the crime of receiving stolen property, the State must prove that the defendant "knowingly receive[d] . . . movable property of another knowing that it ha[d] been stolen, or believing that it is probably stolen." N.J.S.A. 2C:20-7a. The crime consists of three elements: (1) the property was stolen; (2) defendant knew the property was stolen or believed that it had probably been stolen at the time he received it; and (3) defendant knowingly received the property. Ibid.; see State v. Hodde, 181 N.J. 375, 380-81 (2004).

Acknowledging that the State established that the car was stolen, Gary contends that the State's evidence was inadequate to permit a jury to find that he knew or believed that the car was probably stolen. We conclude that the evidence was sufficient.

The requisite knowledge that property has been stolen may be inferred from surrounding circumstances that support the inference. See State v. Alexander, 215 N.J. Super. 523, 530 (App. Div. 1987) (discussing the inference available when the property possessed was recently stolen). A defendant's mere presence as a passenger in a stolen vehicle is not sufficient since the passenger may be unaware that the vehicle is stolen. See State v. Serrano, 53 N.J. 356, 359-60 (1969). The evidence in this case, however, was not limited to Gary's status as a passenger. The condition of this car permitted the inference that Gary knew the car was taken without the owner's permission. The plastic casing of the steering column was shattered, and broken pieces were scattered in the front. There were dangling wires and a missing ignition, and the car was being driven without a key. From these facts, a reasonable jury could infer that a person entering this two-door car would observe this condition and know it was stolen or believe that it probably was stolen.

Gary also contends that the State's proofs are insufficient to establish the third element, that he "received" the property. The statutory definition of "receiving" is defined as "acquiring possession, control or title, or lending on the security of the property." N.J.S.A. 2C:20-7(a).

Again, the mere presence of a person as a passenger in a stolen vehicle is insufficient to establish his or her possession of the vehicle. See State v. McCoy, 116 N.J. 293, 300 (1989). However, the surrounding circumstances may give rise to an inference that the passenger possessed or controlled the vehicle. Ibid. Possession may be actual or constructive and may be exercised jointly by two or more persons. Id. at 299-300. Thus, the driver and passengers may all have possession of the vehicle. The Supreme Court has stated that constructive possession may be inferred "from a passenger's presence in a stolen automobile when that presence is coupled with additional evidence that the passenger knew the driver, knew that the vehicle was stolen, and intended to use the vehicle for his or her own benefit and enjoyment." Id. at 303. In State v. Alexander, supra, 215 N.J. Super. at 528-29, this court found the evidence sufficient to submit the count of receiving stolen property to the jury where defendant was a passenger in a stolen vehicle within six hours of the theft of the vehicle, he lived in close proximity to the place of the theft, and he had provided some false information to the police. Thus, the defendant's presence in the vehicle which he knows to be stolen coupled with other factors may be sufficient to submit the question of receiving stolen property to the jury.

In this case, there was evidence that the vehicle was stolen, that the condition of the vehicle indicated it had been stolen, that Gary was in the vehicle within hours of the theft, that he and the other occupants lived in the same town as the victim, that Gary knew the driver, and that he was at the time using the vehicle for his benefit and enjoyment. From this evidence, a reasonable jury could infer that Gary, along with the driver and Servil, had received the stolen vehicle within the meaning of the statute.

Gary's argument that the trial court erred in adding language to the Model Jury Charge (Criminal) on receiving stolen property is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Servil's contention that the verdict was against the weight of the evidence is not cognizable on appeal because he failed to make a motion for a new trial below. R. 2:10-1. We find nothing in his arguments that would cause us to entertain this application in the interest of justice despite this lapse. See State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), (stating that in the interests of justice, we may entertain an argument that the verdict is against the weight of the evidence despite the defendant's failure to move for a new trial before the trial court) certif. denied, 134 N.J. 476 (1993).



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