State v. Reed
| Decision Date | 23 February 1982 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Fred REED, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
John M. Apicella, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney; Mary Ellen Shiever, Asst. Deputy Public Defender, of counsel and on the letter brief).
Victoria Curtis Bramson, Deputy Atty. Gen., for plaintiff-respondent (James R. Zazzali, Atty. Gen., and John J. Degnan, former Atty. Gen., attorneys; Victoria Curtis Bramson of counsel and on the brief).
Before Judges FRITZ, ARD and TRAUTWEIN.
The opinion of the court was delivered by
ARD, J. A. D.
Defendant appeals from a judgment of resentence by the three-judge Resentencing Panel which was constituted by directive of the Supreme Court (see 104 N.J.L.J. 489 (December 6, 1979)). The primary issue presented to us is whether the congruent offense to forgery (N.J.S.A. 2A:109-1 a) is theft by deception (N.J.S.A. 2C:20-4) under the New Jersey Code of Criminal Justice effective September 1, 1980.
Defendant entered pleas of guilty to three counts in Monmouth County Indictment 216-78. On March 16, 1979 he was sentenced as follows:
Count I, forgery (N.J.S.A. 2A:109-1a)-five to seven years in State Prison;
Count II, uttering a forged instrument (N.J.S.A. 2A:109-1b)-three to five years in the State Prison concurrent with the sentence imposed on count I;
Count III, obtaining money under false pretenses (N.J.S.A. 2A:111-1 and N.J.S.A. 2A:85-5)-one to two years in the State Prison concurrent with the sentences imposed on counts I and II.
The facts are not in dispute. On August 7, 1978 defendant went into the First National Bank in Middletown and forged the name of the real depositor to a savings account withdrawal slip and attempted to withdraw $560. The teller recognized that defendant was not the depositor and called the police. The police came to the bank and arrested defendant. This transaction constituted the factual basis for the aforementioned guilty pleas to the three counts of the indictment.
On December 10, 1979 defendant filed a motion for resentencing under N.J.S.A. 2C:1-1 d(2). In addition to Indictment 216-78, the motion included sentences on other indictments. However, at the hearing before the Resentencing Panel on February 20, 1980, defendant, represented by counsel, sought resentencing only on Indictment 216-78.
N.J.S.A. 2C:1-1 d(2) provides for the reduction or modification "for good cause shown" of sentences of imprisonment imposed prior to the effective date of the code for offenses which are eliminated or downgraded by the code. The pertinent portion of the aforementioned statute is as follows:
(2) Any person who is under sentence of imprisonment on the effective date of the code for an offense committed prior to the effective date which has been eliminated by the code or who has been sentenced to a maximum term of imprisonment for an offense committed prior to the effective date which exceeds the maximum established by the code for such an offense and who, on said effective date, has not had his sentence suspended or been paroled or discharged, may move to have his sentence reviewed by the sentencing court and the court may impose a new sentence, for good cause shown as though the person had been convicted under the code, except that no period of detention or supervision shall be increased as a result of such resentencing.
The Panel found "good cause," and that finding is not in dispute. Subsequently the Panel held the congruent offense for forgery was theft by deception, N.J.S.A. 2C:20-4 a. State v. Reed, 174 N.J.Super. 407, 410-411, 416 A.2d 946 (Resent. Panel 1980). Since defendant was apprehended at the time he was attempting to withdraw the $560, the Panel determined the crime was an attempted theft by deception. It reasoned:
... In this case the amount involved was $560 under the theft chapter an offense of the third degree (N.J.S.A. 2C:20-2b(2)(a), 2C:20-4a). An attempt to commit a third-degree crime is a crime of the same degree (N.J.S.A. 2C:5-4a). Thus, the maximum penalty to which defendant is exposed under the Code is five years for the forgery. Those aspects of the sentence under Indictment 216-78 which were concurrent are not significant. He is, therefore, entitled to be considered for resentencing and to be given the opportunity to demonstrate good cause 1 therefor under N.J.S.A. 2C:1-1d(2). (Id. at 411, 416 A.2d 946).
After the determination on the congruent offense, defendant was resentenced on count 1 of Indictment 216-78 to a term of five years in the State Prison. The sentences originally imposed on the second and third counts were left undisturbed.
Defendant appeals and urges the following as error:
POINT I-The Resentencing Panel erroneously determined that certain forgeries should be graded pursuant to the provisions of N.J.S.A. 2C:20-2(b).
POINT II-Defendant's conviction for attempting to obtain money by false pretenses should be merged into his conviction for uttering a forged instrument.
POINT III-The sentence imposed on the violation of probation was illegal in that it violated N.J.S.A. 2A:164-6. 2
At the outset we are satisfied that defendant's conviction of attempting to obtain money under false pretenses (count 3) should have been merged with the offense of uttering a forged instrument (count 2). Under the circumstances of this case defendant's activities in uttering the forged instrument and attempting to obtain money under false pretenses constitute a single offense. State v. Wright, 154 N.J.Super. 174, 181, 381 A.2d 58 (App.Div.1977). Uttering a false instrument was a high misdemeanor (N.J.S.A. 2A:109-1). False pretenses was a misdemeanor (N.J.S.A. 2A:111-1). Accordingly, the lesser crime should give way to the greater, and we hold, with respect to counts 2 and 3 of Indictment 216-78, that only one conviction should remain, i.e., a conviction for uttering based on the allegations of count 2 of the indictment. The conviction and sentence on count 3 is vacated.
As indicated, the Resentencing Panel found that the congruent offense to forgery under N.J.S.A. 2A:109-1 a is theft by deception as defined in N.J.S.A. 2C:20-4. The Panel reasoned that forgeries are thefts, and therefore the statutory plan dictated that the equivalent offense for forgery is to be found under chapter 20, "Theft and Related Offenses," and more particularly, theft by deception under N.J.S.A. 2C:20-4.
We disagree. In holding that the congruent offense for forgery was theft by deception, the Resentencing Panel relied on the following commentary of the New Jersey Criminal Law Revision Commission:
In preparing the Code, we have operated on the assumption that much of the desire for authenticity, previously covered by the law of forgery, is now better dealt with as forms of false pretense (i.e., theft) and fraud. Our new law remedying shortcomings in the law of theft, fraud, attempt, complicity and professional criminality diminish greatly the need for a separate forgery offense. The crime is conservatively drafted to avoid penalties disproportionate to those for fraud. Moreover, in the administration of forgery law, sentencing courts and parole boards should be alert to the potentiality of unfairness in cumulating convictions for forgery and fraud based on forgery. It would ordinarily be hard to justify punishing an employee more harshly for forging his employer's endorsement on a check than for stealing for (sic) $100 of the employer's cash. (Vol. II: Commentary 238 (1971); emphasis supplied) (State v. Reed, supra, 174 N.J.Super. at 409, 416 A.2d 946)
It then held that since the attempted theft by deception involved an amount over $500, the crime was a third degree crime. N.J.S.A. 2C:20-2 b(2)(a). The sentence range for a third degree crime is three to five years. N.J.S.A. 2C:43-6 a(3). They then sentenced defendant to five years on count 1.
The passage from the Commentary of the Criminal Law Revision Commission dealt with the rationale for the punishment imposed for forgery. Whether a particular provision is a congruent offense does not turn on the degree of punishment. In the instant case the State originally chose to prosecute defendant for forgery under N.J.S.A. 2A:109-1 a. The successor to the latter statute in the Code is N.J.S.A. 2C:21-1 a. It is entitled "Forgery." We see no reason to go further in attempting to find the congruent or equivalent offense. The Historical Note under N.J.S.A. 2C:21-1 indicates its source is N.J.S.A. 2A:109-1, the original forgery statute.
The provision dealing with forgery under the Code is as follows:
a. Forgery. A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
(1) Alters or changes any writing of another without his authorization or ratification;
(2) Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act or of a fictitious person, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or
(3) Utters any writing which he knows to be forged in a manner specified in paragraphs (1) or (2).
"Writing" includes printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and other symbols of value, right, privilege, or identification.
b. Grading of forgery. Forgery is a crime of the third degree if the writing is or purports to be part of an issue of money, securities, postage or revenue stamps, or other instruments, certificates or licenses issued by the government, or part of an issue of stock, bonds or other instruments...
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