State v. McCoy

• Decision Date: 04 August 1989
• Citation: 561 A.2d 582,116 N.J. 293
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Alvin McCOY, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 293

116 N.J. 293

561 A.2d 582

STATE of New Jersey, Plaintiff-Appellant, v. Alvin McCOY, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Feb. 14, 1989.

Decided Aug. 4, 1989.

Cherrie M. Black, Deputy Atty. Gen., for appellant (Donald R. Belsole, Acting Atty. Gen. of New Jersey, atty.).

Thomas F. Donlon, Designated Counsel, for respondent (Alfred A. Slocum, Public Defender, atty.).

The opinion of the Court was delivered by

POLLOCK, J.

The sole issue on this appeal is whether defendant provided an adequate basis for a plea of guilty of receiving stolen property in violation of N.J.S.A. 2C:20-7. The Appellate Division found that the basis was inadequate. Consequently, it reversed defendant's conviction and remanded the matter to the Law Division. 222 N.J.Super. 626, 537 A.2d 787 (1988). One judge dissented and the State appealed as of right. R. 2:2-1. Although we disagree with the reasoning of the Appellate Division, we affirm the judgment of remand.

-I-

On December 9, 1985, defendant, who had been convicted for three prior criminal offenses, two of which were for the receipt of stolen automobiles, pled guilty to three more offenses involving the theft or burglary of automobiles. Because of his cooperation with the prosecution on other matters, defendant was placed on probation. The next day defendant was arrested for the subject offense of receiving a stolen automobile. Following his indictment, he pled guilty pursuant to a plea agreement. Thereafter, in providing a factual basis for his plea, defendant described the events of December 10th:

THE DEFENDANT: I was walking down the street and my friend came around the corner. Keith Martin came around the corner in the car and he called me over there to him. So I came to the car. I was getting ready to enter the car. I put my hands on the car. As soon as I put my hands on the car, the cop told me freeze, so I ran.

THE COURT: Okay. Mr. Sypniewski [defendant's attorney]--excuse me. Mr. McCoy, did you have any reason to believe that the car was or might be stolen?

THE DEFENDANT: Yes, I did.

THE COURT: Did you think the car was or was likely to be stolen?

THE DEFENDANT: Yes.

THE COURT: He says he wasn't in the car.

[THE ASSISTANT PROSECUTOR]: Were you about to get into the car, Mr. McCoy?

THE DEFENDANT: Yes, I was.

[THE DEFENDANT'S ATTORNEY]: What were you about to get into the car for?

THE DEFENDANT: I was going to ride around in it.

[THE DEFENDANT'S ATTORNEY]: Knowing that the car was stolen?

THE DEFENDANT: Yes.

The trial court ascertained that defendant's plea was knowing and voluntary and that defendant knew and understood his rights. Before sentencing, defendant moved to withdraw his plea, but the trial court concluded that the plea was supported by an adequate factual basis. In accordance with the plea agreement, the court sentenced defendant to five-years' imprisonment, with a two-and-one-half year period of parole ineligibility concurrent with three five-year suspended sentences for the previous theft and burglary convictions.

-II-

Defendant appealed his conviction on the grounds that there was an insufficient factual basis to support the plea and that it was not voluntary due to his emotional state at the time of the plea. The Appellate Division found that defendant's emotional condition at the time of the plea did not preclude him from understanding the nature and consequence of his plea. 222 N.J.Super. at 629, 537 A.2d 787. The court concluded, however, that the facts were insufficient to establish that defendant had "received" the stolen automobile. Id. at 631, 537 A.2d 787. In reaching this decision, the majority observed that under N.J.S.A. 2C:20-7 receipt equates with possession. The court noted further that "possession" is defined as " 'intentional control and dominion.' " Id. at 632, 537 A.2d 787 (quoting State v. Labato, 7 N.J. 137, 148, 80 A.2d 617 (1951)). Analogizing defendant to an "innocent passenger," see State v. Kimbrough, 109 N.J.Super. 57, 262 A.2d 232 (App.Div.1970), the court concluded that there was no evidence that defendant intended to control the vehicle, or that he and the driver were on a joint or common mission, or that defendant was in a position to assert control or dominion over the driver of the vehicle. 222 N.J.Super. at 633, 537 A.2d 787. The court held that "where a defendant is merely a passenger in a car which he knows to be stolen but does not possess it because he lacks the necessary dominion and control over the vehicle * * * he may not be convicted of receiving a stolen auto in contravention of N.J.S.A. 2C:20-7." Id. at 633-34, 537 A.2d 787. Because defendant was like an innocent passenger, he was not guilty of receiving stolen property. Ibid. The court recognized, however, that defendant's conduct could subject him to a charge of attempted receipt of stolen property. Id. at 630, 537 A.2d 787.

The dissenting judge stated: "[It] seems to me that defendant is guilty of receiving regardless of whether he happened to be a passenger or the driver, so long as he was knowingly riding in the automobile for his own purpose and was aware that it had been stolen." Id. at 634, 537 A.2d 787. The dissent observed that N.J.S.A. 2C:20-7a defines receiving as "acquiring possession, control or title, or lending on the security of the property," and maintained that a defendant need not "control" stolen property in order to "receive" it. Ibid. Accordingly, the dissent stated that as soon as a passenger rides in a vehicle "for his own purpose," knowing it to be stolen, he possesses it. Id. at 635, 537 A.2d 787. The dissent also believed that in the present case the defendant and the driver were engaged in "a shared criminal mission or purpose" to ride in the automobile for pleasure. Ibid. Because defendant intended to derive pleasure from his ride, the dissent found that he "was not only a passenger." Ibid.

Defendant was charged under N.J.S.A. 2C:20-7a, which provides:

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 with purpose to restore it to the owner. "Receiving" means acquiring possession, control or title, or lending on the security of the property.

"Possession" is defined in N.J.S.A. 2C:2-1c as "an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession."

The key elements of the offense are knowing that the property is stolen and possession. When entering his plea, the defendant explicitly stated that he knew the automobile was stolen. Hence, our attention shifts to the question of possession.

In a broad sense, the term "possession" denotes facts pertaining to the relationship between a person and an item of property, as well as the consequences that attach to those facts. See O.W. Holmes, "The Common Law," Lecture 6 at 169 (1863). In that sense, we are concerned with whether the facts pertaining to defendant's relationship to the stolen automobile are sufficient to support the consequence of finding him guilty of its receipt. More specifically, our concern is whether a defendant who knows an automobile to be stolen "receives" the automobile by placing his or her hands on it with the intent to ride around.

In defining "possession" before the adoption of the New Jersey Penal Code, we stated that "[i]t has variant connotations; but on well-settled principle the word is to be given a strict construction in statutes defining criminal and penal offenses. It signifies an intentional control and dominion." Labato, supra, 7 N.J. at 148, 80 A.2d 617. We recognized that " '[p]ossession signifies intentional control and dominion, the ability to affect physically and care for the item during a span of time.' " State v. Brown, 80 N.J. 587, 597, 404 A.2d 1111 (1979) (quoting State v. Davis, 68 N.J. 69, 82, 342 A.2d 841 (1975)). Intentional control and dominion, in turn, means that the defendant was aware of his or her possession. State v. DiRienzo, 53 N.J. 360, 370, 251 A.2d 99 (1969). In adopting the Penal Code, the drafters stated that the definition of "possession" in N.J.S.A. 2C:2-1c was to be "in accord" with our prior definitions as stated in Labato and DiRienzo. II New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission Commentary at 39-40 (1971).

Possession, moreover, can be actual or constructive. Here, for example, the driver was in actual possession of the stolen automobile. As we have previously stated, however, "[p]hysical or manual control of the proscribed item is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists." Brown, supra, 80 N.J. at 597, 404 A.2d 1111. Thus, constructive possession exists when a person intentionally obtains a measure of control or dominion over the stolen goods although they are under the physical control of another. Kimbrough, supra, 109 N.J.Super. at 64, 262 A.2d 232. Finally possession may be exercised jointly by two or more persons at the same time. Brown, supra, 80 N.J. at 597, 404 A.2d 1111. Consequently, the question in the present case becomes whether defendant's relationship to the car was sufficient to permit a finding that he shared possession with the driver.

Although N.J.S.A. 2C:20-7b sets forth the circumstances under which a jury may infer that a defendant knew that the property possessed was stolen, the statute does not establish the circumstances that give rise to an inference of possession. A jury, nonetheless, may draw an inference of possession from all of the surrounding circumstances when it is more likely than not that the proven facts...