State v. Inman
| Decision Date | 07 April 1976 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. John Mitch INMAN, Jr., Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Stanley C. Van Ness, Public Defender, for defendant-appellant (James R. Kinarney, Asst. Deputy Public Defender, of counsel and on the brief).
William F. Hyland, Atty. Gen., for respondent (Michael R. Ascher, Deputy Atty. Gen., of counsel and on the brief).
Before Judges KOLOVSKY, BISCHOFF and BOTTER.
The opinion of the court was delivered by
BISCHOFF, J.A.D.
Defendant appeals his conviction by a jury of the larceny of property valued at more than $200 but less than $500, contrary to N.J.S.A. 2A:119--2(a).
On April 13, 1973 David DeCicco, an employee of Triangle Plumbing, observed a colored male close the trunk of a 1964 Chevrolet, license # YCV 473, get in the car and drive away. DeCicco, who was about 25 feet away, observed boxes in the back seat of the car which he described as approximately three feet square, one inch thick and of the same type used by Triangle Plumbing to package copper tubing coils. Each of these boxes (when full of coils) weighs approximately 30 pounds. He could not see how many boxes were in the car but felt that there were more than two. The car had been parked in the driveway leading to the rear of the warehouse and was three or four feet from it. DeCicco was unable to identify defendant as the driver of the car but testified that defendant fitted the general description of the man he saw driving away.
Thomas Crowell, another warehouseman of Triangle Plumbing, testified that on the same day he saw a car of the same make, model and license number as that described by DeCicco going out the driveway with two boxes of copper coils in the back seat. He described the boxes in a manner similar to the description given by DeCicco. He could not identify defendant.
When interrogated by the police defendant explained his presence at the Triangle Plumbing warehouse by stating that his vehicle had sustained a flat tire and he had changed it at that location.
Following a Voir dire Norman Starr, an employee of Community Plumbing Supply Company, was permitted to testify over objection that in the middle of April 1973 he walked into the garage of Community Plumbing and noticed defendant walking out with boxes of copper tubing. He approached defendant and saw a car parked adjacent to the garage with the trunk open. When Starr informed defendant that the establishment was not a self-service store, defendant returned the merchandise to the garage. The license number on the vehicle was observed by Starr and it was the same as that on the vehicle noticed by DeCicco and Crowell. He identified defendant in court as the man he saw at the Community Plumbing garage.
A shop supervisor of Triangle Plumbing testified that an inventory taken on April 13, 1973 disclosed that five coils of copper tubing were missing and the invoice value of the missing coils was $260.40 or $264.40.
Defendant argues on appeal that 'the court committed reversible error in failing to instruct the jury that they could find the value of the property to be under $200 if they found that defendant in fact did steal the property.' The judge instructed the jury that defendant was charged 'with the crime commonly known as larceny of property of a value of more than $200 but less than $500 belonging to Triangle Plumbing on April 13, 1973.' This was followed by a reading from the statute, N.J.S.A. 2A:119--2(a), and defining larceny. Later in the charge the judge said:
As you noted from my reading the statute, value must be alleged in the indictment to distinguish between the degree of crime proscribed by our law. The distinction exists merely for the purpose of punishment, a high misdemeanor carrying a higher penalty than a misdemeanor. But the offenses are otherwise the same. Accordingly, proof of value must be introduced at the trial. If you determine that the State has established the guilt of the defendant of the crime charged to him beyond a reasonable doubt it is important that you determine the value of the articles taken and state that value in returning your verdict.
No objection was taken to the charge. After approximately one hour of deliberation the jury returned with the following question:
Does the value of the merchandise have to be stated with a verdict? Can we decide that he stole five rolls or do we assume that if he is guilty he stole all that the inventory shows is missing?
The judge answered the question by instructing the jury again on the necessity for the State to prove the crime of larceny beyond a reasonable doubt and that the jury must state in its verdict the value of the property which it found to have been stolen.
While defense counsel did not object to the court's supplemental charge, he did say:
I don't have an objection, your Honor, but I think in view of the question it may be appropriate to charge the jury as to less than $200 which I believe would be categorized as shoplifting. I understand that is not indictable. It would only be a disorderly persons offense. In view of the question that certainly is a lesser included offense than what the State has charged.
The judge refused to supplement the charge since there had been 'no request to charge the larceny of property having a value of less than $200.'
The jury returned a verdict of guilty, finding that defendant had stolen property 'worth more than $200 but less than $500.'
It is now well recognized that a defendant may be found guilty of a lesser offense necessarily included in the greater offense charged in the indictment, State v. Saulnier 63 N.J. 199, 205, 306 A.2d 67 (1973), and this is so even if the lesser included offense is not indictable. Id. at 208, 306 A.2d 67. However, a charge on a lesser-included offense is only required where there is a request to so charge and where there is a rational basis in the evidence for a finding 'that the defendant was not guilty of the higher offense charged but guilty of the lesser included offense.' Id. at 206--207, 306 A.2d at 70.
We are of the opinion that it was error under the facts of this case for the trial judge to fail to instruct as to the lesser-included offense of a disorderly person. N.J.S.A. 2A:170--30.1. Here, the question asked by the jury and the statement of defense counsel should have alerted the trial judge to this issue. The only evidence of the value of the coils of copper was that the invoice cost of five coils was $260.40. The sole evidence establishing that five coils were stolen was in the inventory discrepancy. The evidence of the number of coils in defendant's car was that there...
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