State v. Streater
| Decision Date | 12 June 1989 |
| Citation | 233 N.J.Super. 537,559 A.2d 473 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Frederick STREATER, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Alfred A. Slocum, Public Defender, for defendant-appellant (Steven M. Gilson, Designated Counsel, Union, of counsel and on the brief).
Samuel Asbell, Camden County Prosecutor, for plaintiff-respondent (Jack L. Weinberg, Asst. Prosecutor, of counsel and on the brief).
Before Judges KING and SKILLMAN.
The opinion of the court was delivered by
SKILLMAN, J.A.D.
Defendant was indicted for conspiracy to commit theft by deception and/or uttering forged instruments, in violation of N.J.S.A. 2C:5-2; bringing stolen property into New Jersey, in violation of N.J.S.A. 2C:20-7; three counts of theft by deception, in violation of N.J.S.A. 2C:20-4, and three counts of uttering a forged instrument, in violation of N.J.S.A. 2C:21-1(a)(3). Before trial, the State dismissed one count of theft by deception and one count of uttering a forged instrument. A jury found defendant guilty of conspiracy, bringing stolen property into New Jersey, one count of theft by deception and one count of uttering a forged instrument. The jury also acquitted defendant of the remaining counts of theft by deception and uttering a forged instrument.
The court granted the State's motion to sentence defendant to an extended term as a persistent offender and sentenced him to a ten year term, with five years of parole ineligibility, on the conspiracy conviction. The court also imposed a consecutive five year sentence, with two and a half years of parole ineligibility on the conviction for bringing stolen property into New Jersey and concurrent five year terms on the convictions for theft by deception and uttering a forged instrument. All of the sentences were made consecutive to another sentence defendant was already serving.
On appeal, defendant makes the following arguments:
We reject defendant's argument that the New Jersey courts lacked jurisdiction to convict him of the crimes of theft by deception and uttering a forged instrument. However, we conclude that defendant's conviction for uttering a forged instrument should have been merged with his conviction for theft by deception and that the trial court erred in imposing a consecutive sentence for bringing stolen property into New Jersey in addition to a maximum extended term for conspiracy. Accordingly, we remand for resentencing.
Defendant's convictions for theft by deception and uttering a forged instrument are based on a fraudulent scheme initiated in New Jersey and consummated in Connecticut. The victim, Paul Rebeschi, Jr., advertised a used race car for sale in a magazine called "The National Dragster." In response, he received a telephone call from a person identified as William Gaines (actually defendant or one of his confederates), who agreed to purchase the car for $22,500. In order to transport the race car, defendant borrowed a trailer from a friend in New Jersey and had an accomplice, using a false identity, rent a U-Haul truck in New Jersey. Defendant then drove with codefendants Jack Dussell and Stephanie Massaro to Connecticut. Posing as William Gaines, Dussell met with Rebeschi and gave him a forged cashier's check, ostensibly issued by a New Jersey bank, in exchange for the race car. Defendant, Dussell and Massaro then brought the race car back to New Jersey.
Defendant argues that the alleged theft by deception and uttering a forged instrument were committed in Connecticut and that the New Jersey courts therefore lacked jurisdiction to try him for those offenses. Defendant relies upon cases decided before enactment of the Code of Criminal Justice which state that "an essential element necessary to the invocation of jurisdiction in criminal cases is that the crime be committed in the state in which the case is tried." State v. McDowney, 49 N.J. 471, 474, 231 A.2d 359 (1967); accord State v. Stow, 83 N.J.L. 14, 84 A. 1063 (Sup.Ct.1912); State v. Segal, 78 N.J.Super. 273, 188 A.2d 416 (App.Div.1963), certif. den. 40 N.J. 224, 191 A.2d 63 (1963).
Defendant did not object before trial to the justification of the New Jersey courts to try him on the charges of theft by deception and uttering a forged instrument. Nevertheless, we are satisfied that the territorial jurisdiction of this State's courts to convict a person of an alleged criminal offense cannot be waived and may be raised at any time. See R. 3:10-4 ().
N.J.S.A. 2C:1-3(a) provides in pertinent part that:
a. Except as otherwise provided in this section, a person may be convicted under the law of this State of an offense committed by his own conduct or the conduct of another for which he is legally accountable if:
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* * * (4) Conduct occurring within the State establishes complicity in the commission of, or an attempt, or conspiracy to commit, an offense in another jurisdiction which also is an offense under the law of this State;
The Commentary contained in the Final Report of the New Jersey Criminal Law Revision Commission describes the intent of this subsection as follows:
[ N.J.S.A. 2C:1-3(a)(4) ] deals with the situation where conduct within the state establishes complicity in the commission of, or attempt or conspiracy to commit an offense in another jurisdiction.... The place of occurrence under the Code is thought to be immaterial. [Commentary, New Jersey Penal Code (1971), Vol. II at 7.]
The Commentary to section 1.03 of the Model Penal Code, from which N.J.S.A. 2C:1-3(a)(4) was derived, contains a more detailed description of the intent of this subsection, which states:
Insofar as Subsection (1)(d) permits prosecution for the inchoate offense (i.e., for attempt, solicitation or conspiracy), it has general support in the American decisions and accords with the strictest territorial theories, since the defendant's conduct takes place wholly in the state.
* * *
* * *
There remains the question whether if the crime is completed in the other jurisdiction, a state in which there was an antecedent solicitation or conspiracy should be competent to prosecute for the completed crime, rather than be limited to the inchoate offense.... Viewing the issue freshly as a matter of legislative policy, conduct within the state sufficing to establish the actor's complicity in the completed crime should serve as well to justify prosecution for the completed crime as conduct that would amount to attempt. The Code's treatment of complicity has this effect.
Moreover, in providing that conspiracy within the state suffices to establish jurisdiction, it was thought that the jurisdiction so established would extend to prosecution for the consummated crime that was the object of the combination, whether it is perpetrated by the actor's own conduct or, as in the case of an accomplice, by conduct of another for which he is legally responsible. [American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments) comment 7 to § 1.03 at 56-58 (1985) (footnotes omitted).]
Therefore, the language of N.J.S.A. 2C:1-3(a)(4) and the penal code commentaries support the conclusion that planning and preparing in this State for the commission of a crime in another state may be sufficient to confer jurisdiction on the New Jersey courts to convict a defendant under the laws of this State. See generally, LaFave & Scott, Criminal Law, § 2.9(b) at 133-135 (2d ed. 1986).
Although there are no New Jersey decisions interpreting subsection (4) of N.J.S.A. 2C:1-3(a), we have broadly interpreted other subsections of N.J.S.A. 2C:1-3 to extend the jurisdiction of the New Jersey courts to offenses committed partly outside of the State. See State v. Sanders, 230 N.J.Super. 233, 553 A.2d 354 (App.Div.1989); State v. Schmidt, 213 N.J.Super. 576, 584-586, 517 A.2d 1226 (App.Div.1986), rev'd on other grounds, 110 N.J. 258, 540 A.2d 1256 (1988); see also State v. Reldan, 166 N.J.Super. 562, 400 A.2d 138 (Law Div.1979), aff'd o.b. 185 N.J.Super. 494, 506, 449 A.2d 1317 (App.Div.1982), certif. den. 91 N.J. 543, 453 A.2d 862 (1982). Moreover, authority from other jurisdictions supports the conclusion that a defendant may be convicted in a New Jersey court for planning and preparing in this State for the commission of a crime in another state. For example, in Commonwealth v. Kloss, 253 Pa.Super. 559, 385 A.2d 480, 483 (1978), the court held that under Pennsylvania's version of N.J.S.A. 2C:1-3a(4) a defendant could be convicted in Pennsylvania for a robbery committed in Ohio, based on the fact that he and a confederate agreed in Pennsylvania to commit the crime and that the confederate, a taxicab driver, picked up the victim in Pennsylvania. See also Sheeran v. State, 526 A.2d 886, 892-893 (Del.1987); State v. Olson, 91 Or.App. 290, 754 P.2d 626 (1988); Gregory v. Commonwealth, 5 Va.App. 89, 360 S.E.2d 858 (1987), aff'd 237 Va. 354, 377 S.E.2d 405 (1989).
The record in this case shows that defendant engaged in substantial conduct in New Jersey evidencing his complicity in the...
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