On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 26-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued September 2, 2011
Before Judges Alvarez and Nugent.
Defendant Luis Batiz appeals a disorderly persons theft conviction, N.J.S.A. 2C:20-3(a), after a trial de novo on the record in the Law Division pursuant to Rule 3:23. For the reasons that follow, we reverse.
In addition to the theft conviction, defendant was convicted in the municipal court of the petty disorderly persons offense of disorderly conduct, N.J.S.A. 2C:33-2(a), the disorderly persons offenses of obstruction, N.J.S.A. 2C:29-1(a), and hindering apprehension, N.J.S.A. 2C:29-3(a). After the November 19, 2010 trial de novo, the Law Division judge determined that the statutory elements for the offenses other than theft were not established and found defendant guilty only of theft.
The facts can be briefly summarized. At the municipal court trial, the
State presented one witness, State Police Trooper DeTullio.*fn1
DeTullio testified that on February 23, 2010, he was
dispatched to a house in Fairfield Township. Upon arrival, he saw a
moving van with the name "Pack Rat Moving Company" (Pack Rat) in
defendant's driveway to the right of his home. A Honda CRV owned by
defendant's wife blocked the van's access to the street. A second Pack
Rat vehicle was parked on the street in front of the house.
Defendant explained to DeTullio that the moving company was attempting to remove its storage pod, filled with his personal belongings, from his driveway; as a result, he in turn had hidden the "key tool" or jack which secured the pod to the moving van.*fn2 At DeTullio's urging, defendant produced the item, defendant's wife moved her CRV, and both Pack Rat vehicles left the residence, pod in tow.
Defendant contends that the State failed to prove theft beyond a reasonable doubt. He also asserts that his claim of right established an absolute defense to the charge. See N.J.S.A. 2C:20-2(c)(2).
The State's position that defendant's acknowledgment that he removed the key in order to prevent the removal of the pod, when joined with the circumstantial evidence, was sufficient proof of theft. The State also asserts defendant could not raise the claim of right argument since he did not own the key and, therefore, his removal of the key constituted theft. At oral argument, the State advanced the further theory that Pack Rat's ownership of the pod barred defendant from successfully asserting a claim of right defense based on his ownership of the pod's contents.
We review the record to determine if the conclusions reached in the Law Division were based on sufficient credible evidence. State v. Johnson, 42 N.J. 146, 162 (1964). In the process, we accord substantial deference to the trial court's credibility determinations. State v. Barone, 147 N.J. 599, 615 (1997). We do not give particular deference, however, to the trial court's interpretation of the law. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
Theft is defined as follows: "[a] person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3. Deprive is defined as "(1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value . . . or (2) [to] dispose or cause disposal of the property so as to make it unlikely that the owner will recover it." N.J.S.A. 2C:20-1(a).
If for the sake of our discussion we assume the State proved the item did not belong to defendant, the State nonetheless did not prove that defendant's removal of the key was intended to be permanent, for an extended period of time, or even intended to make it unlikely that the moving company would recover it. Rather, the State proved only that defendant's conduct was intended to prevent the towing of the pod and his belongings from his property until such time as his dispute with the moving company was resolved. In other words, nothing DeTullio said in his brief testimony established a purpose to deprive the rightful owner of the object, within the meaning of the statute.
Moreover, the State's position that the defense of claim of right is restricted solely to property in which a defendant has an ownership interest is not borne out in the case law. See State v. Taplin, 230 N.J. Super. 95, 96-97, 100 (App. Div. 1988) (defendant entitled to present a claim of right defense, and court must instruct the jury accordingly, where defendant helped a ...