On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-10-1729.
The opinion of the court was delivered by: Ashrafi, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 19, 2012 -
Before Judges Ashrafi, Hayden and Lisa.*fn1
The opinion of the court was delivered by ASHRAFI, J.A.D.
When defendant Bruce Lige was tried on the theft charges from which he now appeals, he already had a record of criminal convictions that stood apart from that of the typical recidivist. At the age of forty-seven, he had been convicted and sentenced in the Superior Court about eighteen times for thefts and other offenses, and in the municipal courts about nine additional times for various disorderly persons and lesser offenses.
In February 2010, he stood trial in Middlesex County on yet another indictment, this time charging two third-degree theft offenses - receiving a stolen tow truck and receiving a stolen motor vehicle license plate. The jury found defendant guilty of both charges, and the court sentenced him to an extended term of ten years imprisonment with the maximum available period of five years of parole ineligibility. We are compelled to reverse the convictions and grant defendant a new trial because a crucial statute, N.J.S.A. 2C:20-7(b), was misapplied at defendant's trial.
That statute allows the jury to infer that a defendant knew he possessed stolen property through evidence that he had been found in possession of yet other stolen items that are not the subject of the charges before the jury. The statute was adapted from a section of the Model Penal Code that established a presumption of guilty knowledge applicable to "dealers" in stolen items. Model Penal Code § 223.6(2). In New Jersey's Code of Criminal Justice, the presumption of knowledge was made to apply to any person found to be in possession of stolen items. Cannel, N.J. Crim. Code Ann. cmt. 1 to N.J.S.A. 2C:20-7 (2012). "The theory of this presumption is that the odds of innocent possession of stolen property decreases as the number of incidents where the defendant possessed stolen property increases." Id. cmt. 5 to N.J.S.A. 2C:20-7 (citing State v. Dixon, 114 N.J. 111, 114 (1989)).
In this case, the trial court incorrectly applied N.J.S.A. 2C:20-7(b) to transactions outside the one-year time limit covered by the statute. The court permitted the jury to hear extensive testimony about defendant's theft offenses outside the time limitation without determining whether that evidence was admissible under N.J.R.E. 404(b), the evidence rule that applies generally to "other crimes evidence." The jury received incorrect instructions on how to use the detailed testimony and documentary evidence pertaining to four other theft offenses committed by defendant several years earlier and one committed several months after the offenses charged in the indictment.
The legal error so permeated the trial that the verdict cannot stand. Defendant is entitled to be retried.
The evidence showed that defendant did auto mechanical work and kept vehicles at his home in New Brunswick. In June 2006, a police detective from Warren County was investigating the theft of a Ford F-350 pickup truck from an auto salvage yard in his jurisdiction. The detective developed evidence that a vehicle bearing a license plate registered to defendant's wife was at the auto salvage yard near the time the Ford truck was stolen. On June 26, 2006, the detective went to defendant's address in the company of New Brunswick police officers and saw both the suspected vehicle registered to defendant's wife and the stolen Ford truck parked near defendant's home. While waiting for a tow truck to retrieve the stolen pickup truck, the detective saw a black tow truck parked in the back of the home. The tow truck had a license plate that was registered to a beige Nissan passenger car. The detective could not see a Vehicle Identification Number (VIN) because the tow truck was partially covered by a tarp. He did not come into contact with defendant on that date and left after retrieving the Ford pickup truck stolen in Warren County.
One month later, on July 28, 2006, the detective and New Brunswick police officers returned to defendant's residence with a warrant for his arrest on the Warren County theft. They again saw in the backyard the tow truck with the Nissan license plate. It appeared to have been freshly painted a dark gray color.
This time, the police were able to obtain the tow truck's VIN, and they learned it had been reported missing on May 12, 2006, from an auto repair shop in Burlington County. The police also learned that the Nissan license plate had expired the previous year. They seized the tow truck and the license plate, and arrested defendant.
A Middlesex County grand jury indicted defendant on charges of receiving the stolen tow truck, N.J.S.A. 2C:20-7, a third-degree offense, and receiving the stolen license plate, also a third-degree offense because the license plate was a public record, N.J.S.A. 2C:20-2(b)(2)(g). The indictment charged that defendant had committed both offenses on July 28, 2006.
N.J.S.A. 2C:20-7 states in relevant part:
a. Receiving. A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received ...