State v. Milano

• Decision Date: 30 March 1967
• Docket Number: No. A--1069,A--1069
• Citation: 228 A.2d 347,94 N.J.Super. 337
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Anthony MILANO, Defendant-Appellant. Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 337

94 N.J.Super. 337

228 A.2d 347

STATE of New Jersey, Plaintiff-Respondent, v. Anthony MILANO, Defendant-Appellant.

No. A--1069.

Superior Court of New Jersey

Appellate Division.

Argued March 6, 1967.

Decided March 30, 1967.

Leonard Adler, Englewood, for appellant (Adler & Winick, Englewood, attorneys, Irving I. Winick, Englewood, on brief).

Elmer J. Skiba, Asst. County Pros., for respondent (Guy W. Calissi, Bergen County Pros., attorney).

Before Judges CONFORD, FOLEY and LEONARD.

The opinion of the court was delivered by

LEONARD, J.A.D.

Defendant appeals from a judgment of conviction for larceny (N.J.S. 2A:119--2, N.J.S.A.) entered upon a jury verdict.

The gravamen of the charge was that during regular shopping hours defendant took two shirts priced at $14.95 each from Gimbel's department store in Paramus, without paying therefor.

Defendant's primary ground of appeal is that the above cited general larceny statute has been impliedly repealed by the later enactment of N.J.S. 2A:170--97, N.J.S.A. which defined 'shoplifting' (basically the offense here charged) and made it a disorderly persons offense not triable in the County Court. Thus defendant argues that the trial court erred in denying his alternative motions, made after verdict, to arrest judgment or for a new trial.

'The mere fact that two statutes overlap in prohibiting the same act does not mean that the later law automatically repeals the earlier one Pro tanto, * * *. Repeals by implication are not favored and it is a cardinal rule of statutory construction that both laws should be given effect if reasonably possible. It is not sufficient merely to show that a subsequent act covers some of the cases encompassed by the earlier one. The legislative intention to repeal must be manifest; the language must admit of no other reasonable interpretation.' State v. States, 44 N.J. 285, 291, 208 A.2d 633 (1965).

The statement annexed to Assembly Bill No. 364 of the year 1962 (which upon enactment became N.J.S. 2A:170--97, N.J.S.A.) discloses that the purpose of the bill was to make it easier for merchants to apprehend and prosecute 'shoplifters' and to protect these merchants from liability for false arrest and other kindred charges. We find no evidence of a legislative intent to make this sanction for the prohibited conduct exclusive or to repeal the larceny statute.

Further, where criminal statutes overlap in prohibiting the same basic act, the proper prosecuting authority may ordinarily in the sound exercise of the discretion committed to him proceed under either act. States, supra, at p. 292, 208 A.2d 633. We consequently deem this point to be without merit.

Defendant's further argument that the State failed to prove the value of the goods taken is not factually true. Each of the two shirts allegedly taken by defendant, which were placed in evidence, bore a price tag of $14.95.

We turn to defendant's next contention that plain error was committed by the admission of prejudicial testimony. After defendant was apprehended in the parking lot outside of Gimbel's premises, the police found a new 'car-coat' from Alexander's in the trunk of his auto. The coat was identified, but was not introduced in...