State v. Curtis

• Decision Date: 25 February 1977
• Citation: 148 N.J.Super. 235,372 A.2d 612
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Benjamin CURTIS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 235

148 N.J.Super. 235

372 A.2d 612

STATE of New Jersey, Plaintiff-Respondent, v. Benjamin CURTIS, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Feb. 7, 1977.

Decided Feb. 25, 1977.

Harvey H. Gilbert, Morristown, for defendant-appellant (Gilbert, Gilbert & Schlossberg, Morristown, attorneys).

Daniel A. Swick, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

William L. Roughton, Jr., Asst. Deputy Public Advocate, East Orange, for Stanley C. Van Ness, Public Advocate, Trenton, as Amicus curiae.

Robert O. Brokaw, Morristown, for Jersey Central Power & Light Co., as Amicus curiae (John G. Graham, Newark, attorney).

Before Judges CARTON, KOLE and LARNER.

The opinion of the court was delivered by

LARNER, J.A.D.

Defendant was convicted in the Rockaway Township Municipal Court of the disorderly persons offense of tampering with an electric meter, in violation of N.J.S.A. 2A:170--64. In a De novo trial on the record in the Morris County Court he was again found guilty.

Defendant's appeal is addressed solely to the constitutionality of a provision of the foregoing statute which permits the existence of certain conditions relating to the electric meter and its wiring to constitute 'presumptive evidence' that the person to whom the electricity is furnished has created or caused the creation of the prohibited act with intent to defraud. Since this statutory evidence rule was a factor in defendant's conviction, he contends that the presumption is unconstitutional and the conviction should be set aside.

The Public Advocate and the Jersey Central Power & Light Company argued as Amici curiae, the former attacking the constitutionality of the act and the latter supporting its validity. The question of the constitutionality of the presumption created by this statute has not been determined in any reported opinion since its adoption in 1938.

For the purpose of clarity it is appropriate to set forth the statute verbatim Any person who, without permission or authority, connects or causes to be connected by wires or other devices, any meter erected or set up for the purpose of registering or recording the amount of electric current supplied to any customer by any vendor of electricity within this state, or changes or shunts the wiring leading to or from any such meter, or by any device, appliance or means whatsoever tampers with any such meter so that the meter will not measure or record the full amount of electric current supplied to such customer, is a disorderly person.

The existence of any of the conditions with reference to meters or attachments described in this section is presumptive evidence that the person to whom electricity is at the time being furnished by or through such meters or attachments has, with intent to defraud, created or caused to be created with reference to such meters or attachments, the condition so existing; provided, however, that the presumption shall not apply to any person so furnished with electricity for less than 31 days or until there has been at least 1 meter reading. (N.J.S.A. 2A:170--64.)

The creation of statutory presumptions in aid of the State in criminal and quasi-criminal prosecutions is not uncommon as a tool of fairness and convenience in the trial process. In the main it is based upon the rationale that, in the context of human experience, 'proof of fact B (the proved fact) establishes a presumption of the truth of fact A (the presumed fact).' See Doe v. Trenton, 143 N.J.Super. 128, 131, 362 A.2d 1200, 1202 (App.Div.), certif. granted 72 N.J. 466, 371 A.2d 70 (1976).

Such statutory presumptions have been considered by the United States Supreme Court and the New Jersey Supreme Court in the context of other offenses. See Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943); State v. Humphreys, 54 N.J. 406, 255 A.2d 273 (1969); State v. DiRienzo, 53 N.J. 360, 251 A.2d 99 (1969); State v. Lewis, 93 N.J.Super. 212, 225 A.2d 582 (App.Div.1966). The significant test of constitutionality under due process is whether the particular factual inference permitted by the statute can be said to be a rational one based upon human experience. As delineated by the United States Supreme Court in Leary v. United States, supra (A) criminal statutory presumption must be regarded as 'irrational' or 'arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. (395 U.S. at 36, 89 S.Ct. at 1548, 23 L.Ed.2d at 82).

The same standard of constitutionality was expressed by our Supreme Court in State v. DiRienzo, supra, in affirmative terms to the effect that 'it must be more likely that not that the facts proven point to the fact inferred.' 53 N.J. at 376, 251 A.2d at 107. If it cannot be said with substantial assurance that the presumed fact is 'more likely than not' to flow from the proved fact, the statutory inference or presumption must be stricken as an arbitrary unconstitutional invasion of due process. See Doe v. Trenton, supra.

In applying the foregoing test to the legislation under consideration herein we note that the electricity consumer is presumptively considered the participant in the prohibited conduct with intent to defraud only if the conditions are such as described in the first paragraph of the statute. The conditions therein consist of affirmative acts of tampering with the electric meter or its wiring or equipment by means designed to affect the ability of the meter to measure or record the full amount of current supplied to the customer. Thus where the evidence establishes directly or circumstantially such affirmative conduct, it may be inferred that the customer participated therein. Conversely, if the evidence points to accidental damage or malfunction of the meter because of the impact of the elements or other nontampering causes, the statutory inference does not come into play.

In view of the preconditions to the application of the inference it is our conclusion with substantial assurance that it is more likely than not that the customer participated in the tampering resulting in the failure of the meter to record fully the current supplied to that customer, with the fraudulent intent of depriving the electric utility of the proper compensation for its service. Such an inference is rational when tested by human conduct and experience, for the only person who would usually be motivated to tamper with a meter is the one who would profit financially from such tampering.

It is apparent that the 1938 amendment creating the presumption was adopted by the Legislature because of the practical impossibility of proving by direct evidence the actual participation of the consumer in the illegal activity. This legislative determination of the reasonableness of the presumption is in itself entitled to some weight in the judicial assessment of its constitutionality. See Leary v. United States, supra, 395 U.S. at 38, 89 S.Ct. at 1549, 23 L.Ed.2d at 82; United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Brown v. Heymann, 62 N.J. 1, 10, 297 A.2d 572 (1972); State v. DiRienzo, supra, 53 N.J. at 381, 251 A.2d 99.

Conceivably a case may arise where the meter is tampered with by a vandal having no ostensible profit motive and which results in the failure of the meter to record the full amount of electric current. Nevertheless, this possibility does not affect the constitutional validity of the statutory inference, which is not dependent upon its rationality as an absolute verity in every instance. It is rather dependent upon a substantial degree of probability that the inference more likely...