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State of New Jersey In the Interest of W.G.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 17, 2011

STATE OF NEW JERSEY IN THE INTEREST OF W.G.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FJ-20-1483-09, FJ-20-1482-09, FJ-20-1760-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 13, 2010

Before Judges Sabatino and Alvarez.

W.G. appeals from an adjudication of delinquency on a lesser-included fourth-degree offense of unlawful taking of a means of conveyance, commonly known as joyriding, in violation of N.J.S.A. 2C:20-10(b). Based on our independent review of the record and applicable law, we are constrained to reverse.

On December 21, 2009, at approximately 10:00 p.m., Sergeant John Quick of the New Brunswick Police Department was on patrol when he saw a car proceeding southbound on Route 27 at a high rate of speed. The driver attempted to make a left-hand turn onto Sanford Street, a one-way street, in the wrong direction. Once the driver realized his error, he made a u-turn into oncoming traffic, at which point Quick radioed dispatch and requested a check on the license plate. He was informed the vehicle, a 1994 Honda Accord, had been reported stolen from a parking lot the day before. Quick put on his overhead lights and stopped the car at Sandy and Front Streets. There were four occupants, including W.G. and his brother*fn1 seated in the rear of the vehicle.*fn2 At the time of the stop, the ignition was empty.

When Quick searched the driver, he found a small screwdriver and a key in his right front pocket. Although the key fit the glove box and the trunk, Quick could not insert it in the badly damaged ignition. Starting the motor required the use of an object such as a screwdriver.

Quick testified at trial that, after nineteen years on the police force, he knew the condition of the ignition meant the vehicle was stolen. In fact, Quick described a photograph introduced during his testimony as depicting "an enormous gaping hole in the steering column." As one of the Honda's owners described it, "the place that you turned the key . . . is no longer there. It's just the inside." The other owner testified that the front steering column is visible from the rear.

Defense counsel argued the Rule 3:18-1 motion for acquittal at the close of the State's case based on the theory that the State did not prove the juvenile even knew the car had been stolen. He contended it was not "necessarily reasonable" to assume a person seated in the rear of even a relatively small car at 10:00 p.m. would have noticed the condition of the steering column. He therefore urged the court to acquit W.G. both of receiving stolen property as well as the lesser-included offense of joyriding.

The court denied the Rule 3:18-1 application and adjudicated W.G. delinquent pursuant to subsection (b) of the unlawful taking of a means of conveyance statute: "A person commits a crime of the fourth degree if, with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent." N.J.S.A. 2C:20-10(b). Now on appeal, the following points are advanced on behalf of the juvenile:

POINT I

NO LEGAL BASIS EXISTED TO FIND BEYOND A REASONABLE DOUBT THAT THE JUVENILE HAD ACTED WITH PURPOSE TO WITHHOLD A MOTOR VEHICLE TEMPORARILY FROM THE OWNER BY TAKING, OPERATING OR EXERCISING CONTROL OVER THE CAR IN VIOLATION OF N.J.S.A. 2C:20-10b

POINT II

THE LOWER COURT SHOULD HAVE GRANTED DEFENSE COUNSEL'S MOTION TO DISMISS THE COMPLAINT AT THE END OF THE STATE'S CASE

POINT III

THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE ADJUDICATION FOR JOY-RIDING, ESPECIALLY GIVEN THE SPARSE RECORD IN THIS TRIAL. (Not Raised Below)

POINT IV

THE LOWER COURT COMMITTED PLAIN ERROR BY FINDING THAT THE JUVENILE WAS GUILTY OF THE OFFENSE OF JOY-RIDING. (Not Raised Below)

POINT V

REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE JUVENILE OF JUSTICE

The juvenile first contends that pursuant to State v. McCoy, 222 N.J. Super. 626, 633-34 (App. Div. 1988), aff'd, 116 N.J. 293 (1989), the judge's acquittal on the original charge alleged in the complaint, namely, receiving stolen property, N.J.S.A. 2C:20-7(a), makes his finding of guilt pursuant to N.J.S.A. 2C:20-10(b) logically inconsistent. The judge specifically found the juvenile did not "acquire[] possession, control, or title of the car," nor did he have "any intent to possess or control the motor vehicle, let alone acquire title to it."

Despite this conclusion, reasonable in light of the void in the State's proofs, the judge went on to state "everyone in the car . . . knew it to be stolen and in participating in using it through their mere presence purposely withheld it. . . ." Yet, the "purpose to withhold temporarily from the owner" required by subsection (b) necessarily involves acts including the unauthorized taking, operation, or exercise of control over a motor vehicle. It is not reasonable to equate the mere act of being a passenger in a motor vehicle known to be stolen with any of these activities.

In contrast, subsection (d) of the statute states: "[a] person commits a crime of the fourth degree if he enters and rides in a motor vehicle knowing that the motor vehicle has been taken or is being operated without the consent of the owner or other person authorized to consent." N.J.S.A. 2C:20-10(d). The language of that section clearly applies to this scenario. Here, the State proved only that the juvenile must have known the Honda was stolen because of the condition of the ignition and the use of an object, as opposed to a key, to start the car.

The judge's factual findings necessarily mean the juvenile could have been adjudicated delinquent only of the offense of joyriding as a passenger, subsection (d), which can be a lesser-included offense of receiving stolen property. See State v. Moore, 330 N.J. Super. 535, 543-45 (App. Div.), certif. denied, 165 N.J. 531 (2000). Subsection (b), however, requires a "purpose to withhold temporarily from the owner," which the judge had specifically found absent from the State's case.

In general, criminal defendants may be retried following the reversal of their conviction on appeal. See N.J.S.A. 2C:1-9(c); State v. Lane, 279 N.J. Super. 209, 214 (App. Div.), certif. denied, 141 N.J. 94 (1995). Double jeopardy considerations preclude this option where a reviewing court bases its decision on "'a failure of proof at trial'" rather than "trial error." State v. Millett, 272 N.J. Super. 68, 97 (App. Div. 1994) (quoting Burks v. United States, 437 U.S. 1, 16, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1, 12 (1978)). The distinction rests on the fact that "[a] reversal for trial error never constitutes a decision that the State failed to prove its case, and therefore implies nothing with respect to the defendant's guilt or innocence." Ibid.

The question we must therefore decide is whether the court's mistaken adjudication of guilt constitutes a "failure of proof" or mere "trial error." See State v. Tropea, 78 N.J. 309, 313-14 (1978) (adopting the Burks distinction between trial errors and failures of proof). Reversals springing from trial errors reveal only the existence of a "defective" process, after which "the accused has a strong interest in obtaining a fair readjudication of his guilt free from error" and "society maintains a valid concern for insuring that the guilty are punished." Burks, supra, 437 U.S. at 15, 98 S. Ct. at 2149, 57 L. Ed. 2d at 12. In contrast, an evidentiary reversal means that the government's case was so lacking that it should not have even been submitted to the jury. . . . [and] it is difficult to conceive how society has any greater interest in retrying a defendant when . . . it is decided as a matter of law that the jury could not properly have returned a verdict of guilty. [Id. at 16, 98 S. Ct. at 2150, 57 L. Ed. 2d at 12-13.]

Because the State could not prove anything more than the juvenile's presence in a patently stolen motor vehicle, we believe the failure is one of proof and not process, and that the double jeopardy clause bars retrial. Because no purposeful conduct was proven beyond the intent to hitch a ride in a stolen car, the State did not prove the elements of the subsection (b) offense. The State did not prove appellant's unauthorized taking, operation, or control, or the purpose to withhold temporarily from the owner. Accordingly, we will not reach the juvenile's other points, made moot by our conclusion.

Reversed.


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