June 4, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN A. SCALCHI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. BMA-001-18-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 9, 2010
Before Judges Gilroy and Simonelli.
Following a trial de novo, the Law Division convicted defendant John Scalchi of two counts of the disorderly persons offense of hindering the apprehension of another by harboring or concealing his son Frank Scalchi, for whom a Superior Court warrant for failure to pay child support had been issued, N.J.S.A. 2C:29-3a(1), and by volunteering false information to a law enforcement officer advising the officer that Frank Scalchi was not inside defendant's residence, N.J.S.A. 2C:29-3a(7). Defendant appeals, and we reverse.
On June 11, 2007, the Superior Court, Chancery Division, Family Part, issued a warrant for Frank Scalchi's arrest for failing to pay child support. On July 2, 2007, two Bergen County Sheriff's officers proceeded to defendant's home in Rutherford, where Frank Scalchi also resided, for the purpose of arresting Frank Scalchi on the outstanding warrant. Defendant informed the officers that his son was not there and refused them entrance into the home to search for him. Instead, defendant contacted the Rutherford Police Department, and when the Rutherford police officers responded, they obtained defendant's permission to search the residence for his son. The Rutherford officers found Frank Scalchi in the upstairs shower, arrested him, and turned him over to the Sheriff's officers.
The Sheriff's officers arrested defendant and charged him with the two disorderly persons offenses. The Municipal Court found defendant guilty of both charges. The court sentenced defendant to a one-year term of probation, and an aggregate fine of $600. The court also imposed all appropriate assessments and costs. On appeal, the Law Division again found defendant guilty and imposed the same sentences as imposed by the Municipal Court.
"No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is assumed." N.J.S.A. 2C:1-13a. Accord State v. Grenci, 197 N.J. 604, 622 (2009). An "offense" is defined in the New Jersey Code of Criminal Justice as meaning "a crime, a disorderly persons offense or a petty disorderly persons offense unless a particular section in this code is intended to apply to less than all three." N.J.S.A. 2C:1-14k. The hindering apprehension statute under which defendant was charged, N.J.S.A. 2C:29-3a, provides in pertinent part that "[a] person commits an offense if, with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes," the defendant (1) "[h]arbors or conceals the other . . . or (7) [g]ives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by [N.J.S.A. 17:33A-16]."
Here, Frank Scalchi had not been charged with a criminal offense, a motor vehicle offense or a violation of the New Jersey Insurance Fraud Statute. Rather, the warrant the Sheriff's officers were executing was for defendant's son's failure to pay child support, a matter not "included in the description of the forbidden conduct" proscribed by the hindering apprehension statute. N.J.S.A. 2C:1-14h.
The State requests that we mold the judgment of convictions to a single disorderly persons conviction of obstruction of the Administration of Law, N.J.S.A. 2C:29-1, citing State v. Viera, 346 N.J. Super. 198, 217 (App. Div. 2001) (holding that a court "may mold a verdict by entering a judgment of conviction for a lesser[-]included offense 'where the jury verdict necessarily constitutes a finding that all the elements of the lesser[-]included offense have been established and where no prejudice to the defendant results.'") (quoting State v. Greenberg, 154 N.J. Super. 564, 567-68 (App. Div. 1977), certif. denied, 174 N.J. 38 (2002)). We decline the invitation.
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