State v. Del Vecchio
| Decision Date | 23 June 1976 |
| Citation | 142 N.J.Super. 359,361 A.2d 579 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Robert DEL VECCHIO, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Edward P. Hannigan, Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney).
Curtis A. Morrison, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).
Before Judges HALPERN, CRANE and MICHELS.
The opinion of the court was delivered by
HALPERN, P.J.A.D.
Defendant appeals from a judgment of conviction, entered on a jury verdict, for breaking and entering with intent to steal in violation of N.J.S.A. 2A:94--1.
The narrow issue presented is whether the trial judge erred in charging the jury that voluntary intoxication is not a defense to the charge of breaking and entering with intent to steal. He charged the jury thusly:
There has been testimony that indicates on the part of the defendant Robert Del Vecchio a voluntary consumption of alcoholic beverages by him prior to the time he is alleged to have committed the offense charged. This in no way should be considered as relieving the defendant of the criminal responsibility for the crime charged.
This principle rests upon the sound public policy which holds all men accountable for acts voluntarily undertaken.
In this case, if you find that the alcohol was voluntarily taken and the acts charged were actually committed by the defendant Robert Del Vecchio, you may infer that the defendant acted intentionally in committing those acts with which he is charged.
Appropriate objection was taken to the charge pursuant to R. 1:7--2.
The proofs submitted by defendant, which need not be detailed although controverted by the State and open to diverse inferences and conclusions, presented a jury question as to whether defendant was intoxicated to such an extreme degree that he was unable to form a specific intent to steal. It is axiomatic that the gist of the crime here involved is the intent to steal. State v. Tassiello, 75 N.J.Super. 1, 5--6, 182 A.2d 129 (App.Div.1962), aff'd 39 N.J. 282, 188 A.2d 406 (1963). If the jury reached the conclusion that he was incapable of forming such intent as charged in the indictment, then defendant was entitled to an acquittal, and the trial judge's charge which removed that defense was reversible error. State v. Frankland, 51 N.J. 221, 238 A.2d 680 (1968); Perkins, Criminal Law and Procedure (4 ed. 1972), c. 8 at 538; 1 Wharton's Criminal Evidence (13 ed. 1972), § 223 at 475--479; Model Penal Code § 2.08; New Jersey Criminal Law Revision Commission, 'The New Jersey Penal Code,' § 2C:2--8 at 21 (1971). If defendant should be acquitted, it is not because the law excuses his conduct of voluntary intoxication and breaking and entering, but because he lacked the required specific intent to steal as mandated by N.J.S.A. 2A:94--1.
Our determination that the proofs herein, on the degree of defe...
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State v. Moore
...intent to cheat or defraud"), namely, "that a defendant knew of the falsity of his representations * * *." State v. Del Vecchio, 142 N.J.Super. 359, 361, 361 A.2d 579 (App.Div.), certif. den. 71 N.J. 501, 366 A.2d 657 (1976), held that, since breaking and entering with intent to steal (N.J.......
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State v. Stasio
...in the Appellate Division as to the meaning of Chief Justice Weintraub's discussion of intoxication in Maik. In State v. Del Vecchio, 142 N.J.Super. 359, 361 A.2d 579 (App.Div.), certif. den. 71 N.J. 501, 366 A.2d 657 (1976), a conviction for breaking and entering with intent to steal was r......
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State v. Atkins
...the judge gave erroneous instructions to the jury on the effect of his assertion of intoxication as a defense. State v. Del Vecchio, 142 N.J.Super. 359, 361 A.2d 579 (App.Div.), certif. den. 71 N.J. 501, 366 A.2d 657 (1976), held that voluntary intoxication to an extent that prevents defend......
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State v. Cameron
...reading. As later pointed out in State v. Stasio, 78 N.J. 467, 396 A.2d 1129 (1979), the Appellate Division in State v. Del Vecchio, 142 N.J.Super. 359, 361 A.2d 579, certif. den., 71 N.J. 501, 366 A.2d 657 (1976), limited Maik 's sweep to the proposition that voluntary intoxication is rele......