State v. Lungsford

• Decision Date: 04 April 1979
• Citation: 400 A.2d 843,167 N.J.Super. 296
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Lawrence LUNGSFORD, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 296

167 N.J.Super. 296

400 A.2d 843

STATE of New Jersey, Plaintiff-Respondent, v. Lawrence LUNGSFORD, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 16, 1979.

Decided April 4, 1979.

Edward A. Halpern, Newark, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney).

Frank J. Cozzarelli, Jr., Newark, for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney).

Before Judges CONFORD, PRESSLER and KING.

The opinion of the court was delivered by

KING, J. A. D.

Defendant was tried before a jury and found guilty of both counts of a two-count indictment charging him with knowing possession of a motor vehicle with an altered serial number for which no verified statement had been filed with the Division of Motor Vehicles within ten days of possession, contrary to N.J.S.A. 2A:127-3, and receiving a motor vehicle known to have been stolen and belonging to James Wilton, contrary to N.J.S.A. 2A:139-3. Post-trial motions for acquittal and a new trial were denied and defendant was sentenced to two concurrent 12-month terms in the Essex County Correction Center.

On April 19, 1975 defendant Lungsford was arrested upon being found in possession of a 1968 Plymouth Road Runner two-door hardtop. The State alleged that the Road Runner was stolen on January 8, 1975 from James Wilton of Edison. The State was unable to produce Wilton at trial to identify the vehicle or testify that it was stolen. Defendant testified at trial that he purchased the car from James Law of Hillside in January 1973. Although he had a title and registration he could not corroborate the purchase. Both sides attempted to locate Law but were unsuccessful. Defendant's appellate claims emphasize the hearsay nature of certain evidence admitted at trial over his objection.

The claims of trial error focus on the manner in which the police attempted to prove that the Road Runner in defendant's possession when he was arrested was the allegedly stolen Wilton vehicle. Some background from the record is necessary for understanding. Automobiles each have at least two, sometimes three, distinguishing numbers which are placed in the car at the point of production. The primary and most visible number is called the vehicle identification number (VIN). This indicates the type, year and make of the car. On the 1968 Road Runner the VIN was riveted to the driver's side of the dashboard. The second number, a confidential serial number, is usually found elsewhere in a permanent component of the car. This confidential number is for the benefit of auto theft investigation. Chrysler Corporation's version of the confidential serial number on this 1968 Road Runner model was called a factory order number and was found underneath the hood stamped into the radiator brace on the driver's side. In this case, a third number, called a packing slip number was placed in the coils of the back seat of the Road Runner.

A car may be traced through any of the numbers. In this case, because the VIN, in the opinion of Detective Walsh of Newark's auto theft squad, did not appear to have been factory-installed, the police requested the National Automobile Theft Bureau (NATB) to factory-trace the car through the factory order number. (Unfortunately, the record is totally uninformative about the nature and function of NATB.) A factory-trace provides the time of manufacture and reveals the zone office where the car was sold, and thus permits the identification of the first owner. From the factory-trace the proper VIN for the vehicle may also be determined. That VIN then may be forwarded to the Division of Motor Vehicles and the current ownership of the car traced through state records.

In the present case the trace of the factory order number stamped on the radiator brace produced an allegedly corresponding VIN which NATB rendered to the Newark police who, in turn, forwarded the VIN to the Division of Motor Vehicles in Trenton. The VIN rendered to Trenton was RM21H8A267488. The Division sent back to Newark the name of the alleged owner, James Wilton, who had reported a like car stolen on January 8, 1975. The record, though unclear, is susceptible of the conclusion that the VIN on the Division's reply did not completely match the number furnished by the NATB the H was a 2 and the last two digits were 68 rather than 88.

At trial the State alleged that defendant obtained possession of the car stolen from Wilton and then took the VIN tag from a similar model car and screwed it onto the dashboard of the stolen car. The State also contended the packing slip number found in the back seat coils, when traced, proved that the seats came from a stolen 1969 Plymouth. In addition to the various number traces the State produced a criminal investigation report which showed that James Wilton reported his car stolen on January 8, 1975. The incident report contained an obviously incorrect VIN, RMH1H8A267468. Sergeant Barrett of the Edison Police testified that he contacted Wilton by phone within a week of the incident and obtained the correct VIN, RM21H8A267488, which the factory-trace undertaken through the NATB ultimately revealed to be the VIN compatible with the confidential serial number on the radiator brace of the subject Road Runner.

As stated, the State could not locate Wilton; defendant could not locate Law. Defendant testified to the purchase of the Road Runner in January 1973 when he said he received a New Jersey title and registration from Law. Defendant testified that since his acquisition of the vehicle the windshield was broken and the ignition was stolen. He said that when the windshield was smashed the VIN tag was broken loose on one side, thus creating the condition which aroused Detective Walsh's suspicions. Defendant also said he bought new seats from a junkyard, replaced the engine, and put in a new radiator and brace after he bought the car. He did not say when he replaced the radiator. He produced no receipts for these transactions. Because he had allegedly lost the front license plate, defendant had re-registered the car on January 21, 1975 and had received new plates. The car thereafter passed inspection in April even though the registration showed a blue vehicle and the Road Runner was then gray. Defendant testified he had primed the car gray without removing the blue. The VIN on defendant's car was RM21HAG125629, a number incompatible with the model in Detective Walsh's opinion.

In order to attempt to prove its case the State was required to rely on the NATB factory-trace information to establish that the car in defendant's possession when he was arrested was the car reported stolen by Wilton. The NATB information led the police to the Wilton car-theft incident report through the not quite perfect matchup with the Division of Motor Vehicles' VIN information. Although the judge did not permit the State to prove exactly what NATB told Detective Walsh, the entire tracing process in effect was crucial in the State's attempt to link the car in defendant's possession to the allegedly stolen Wilton vehicle. The record, however, contains no information about the probable reliability of the NATB.

Our independent inquiry has provided some background about the NATB which is useful in analyzing the admissibility into evidence of information transmitted by it. The NATB is a nonprofit corporation, national in scope, founded in 1912 and financed by over 500 automobile insurance companies representing 95% Of the industry. The companies are assessed for the expense of the NATB's upkeep based on the relative amounts of premium written for physical damage insurance on motor vehicles. The purpose of the organization is in large part to prevent and reduce theft losses of automobiles. NATB assembles and disseminates information on stolen automobiles and assists law enforcement in their identification and recovery. Information on stolen vehicles is routinely sent by member companies to the NATB where it is computer-stored. The NATB is also the automobile industry's approved repository for all vehicle information and identification numbers on all American and some foreign-made cars. Federal and state law enforcement authorities call upon the NATB for information pertinent to investigations directed towards identifying and retrieving stolen cars. The NATB is essentially an informational warehouse, a registry for the industry.

Once Detective Walsh derived the confidential factory code number from the radiator brace on the Road Runner, he was able to set the factory trace machinery in process through the NATB. The information provided by the NATB led him through the state information bank on motor vehicles at Trenton to the report of Wilton's stolen Road Runner, which VIN keyed into the confidential factory number on the radiator brace in defendant's car.

We are constrained to hold that this conviction must be reversed. Although Walsh was not permitted to tell the jury the precise content of the information he received from NATB, his whole process of tracing the identity of the 1968 Road Runner in the Spring of 1975 was dependent thereon. Therefore this critical aspect of the case this crucial link was effectively evidential against defendant. Without the use of the NATB process no potential nexus between Wilton's car and defendant's car could have possibly been established. But the record is devoid of any proof of the reliability of the NATB procedures and therefore of any proper evidential basis for admission of data derived therefrom.

In our opinion the NATB procedures for tracing the identification of motor vehicles could properly be held by a trial court to be evidential in a criminal case if compliance with Evid.R. 63(30) was established. This rule states:

Evidence of a statement of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible to...