State v. Yoskowitz

Decision Date19 July 1989
Citation563 A.2d 1,116 N.J. 679
PartiesSTATE of New Jersey, Plaintiff-Appellant, v. Marc YOSKOWITZ, Defendant-Respondent.
CourtNew Jersey Supreme Court

Carol M. Henderson, Deputy Atty. Gen., for plaintiff-appellant (Cary Edwards, Atty. Gen., attorney).

Marlene Yoskowitz, for defendant-respondent.


Defendant, Marc Yoskowitz, arranged to have his automobile stolen so that he could collect insurance. On March 28, 1985, defendant pleaded guilty in Municipal Court, Livingston, Essex County, to the disorderly-persons offense of filing a false police report. Seven months later the Prosecutor of Union County charged defendant with third-degree arson and third-degree attempted theft by deception. The issue in this appeal is whether a subsequent indictment charging arson and attempted theft by deception is barred by double jeopardy, the mandatory joinder rule, or fundamental fairness.


In January 1985, the defendant, then eighteen years old, was having financial trouble and his car was experiencing mechanical difficulties. To get money, defendant devised a plan to defraud his insurer, Allstate Insurance Company, by having his 1980 Pontiac Trans Am stolen and then claiming insurance for the loss. In furtherance of the scheme, defendant claims to have met a man named "Andy" at an unnamed bar 1 on or about January 17, 1985, and to have paid Andy $100 to "get rid of [his] car." Defendant described the car to Andy and gave him its license plate number and an extra set of keys. He told Andy he would park the car near the Burger King at the Livingston Mall at about 1:00 p.m. on January 22, 1985.

On that day, defendant drove his car to the Livingston Mall, parked it near the Burger King, locked it, and went shopping. When he returned to the parking lot, his car was missing. Defendant immediately contacted Mall security officers, who assisted him in the futile search for his car. The Livingston Police Department then was called, and defendant reported that his car had been stolen from the mall. The next day he reported the loss to his insurance agent and to Allstate. Although he was aware that the car was a 1980 model, defendant falsely represented to the police and his insurance company that it was a 1982 vehicle. His title papers erroneously indicated that the car was a 1982 model.

Eight days later, on January 30, 1985, at approximately 3:30 a.m., a fire was reported in a deserted area on Village Road in Union. 2 On arriving at the scene, firefighters found a burning automobile later identified as defendant's. The car exploded shortly after their arrival, but the fire was soon extinguished. No one was injured by the blaze. A search of the immediate area at the time of the fire yielded a piece of cloth and a sports jacket, each of which smelled of gasoline. The owner of the jacket was never discovered.

The vehicle was examined by fire inspectors from the Union County Bureau of Fire Prevention and an investigator from the Union County Arson Unit. The investigators concluded that the car had been stripped of valuable accessories and, with gasoline as the probable accelerant, set ablaze from within. That same day, Detective Stan Mazur of the Township of Union Police Department was informed that the matter had been referred to the Union County Arson Unit for further investigation. A February 1, 1985, Union County Prosecutor's Office (Arson Unit) intra-office report described the burned vehicle as having "been stolen at the Livingston Mall some months ago.... [T]he Livingston Police Department is doing a followup investigation on the stolen car aspect along with the Union Police Department."

On February 6, 1985, defendant called Detective Mazur and learned that his car had been recovered and towed to a local auto-repair shop. Five days later, on February 11, 1985, Detective Stehlgens informed Allstate that the car had been found completely burned and that arson was suspected. On February 15, 1988, defendant filed with Allstate an "Affidavit of Automobile Total Theft."

Detective Stehlgens of the Livingston Police Department and Detective Mazur of the Union Police Department investigated the theft of the vehicle. On March 5, 1985, Detective Mazur called defendant and requested that he come to the Union Police Station for questioning. On arrival, defendant met with detectives Mazur and Stehlgens. After being informed of his constitutional rights, and after signing a waiver-of-rights form, defendant agreed to make a statement to the two municipal police officers. No county police officer was present at that meeting. Defendant admitted orally and in a signed confession that his car was not stolen but that he had paid someone he knew only as "Andy" $100 to take his car from the Livingston Mall so that he could collect on the insurance policy. Defendant said that he would try to find out Andy's last name and tell the police. Defendant maintains that he made his written statement in reliance on assurances from the police that he would be charged only with a disorderly-persons offense and not brought into Superior Court.

On March 6, 1985, Detective Stehlgens informed Detective Mazur that he would be signing a complaint against defendant for filing a false police report. Defendant claims that "[t]he Incident Report of Union Police with entries 1/30/85-3/6/85 ... indicates the defendant as being the [sic] accused of the crime of arson for insurance N.J.S.A. 2C:17-1(b)(3). Thus both the Union Police and the Livingston Police Officials were aware as early as March 6, 1985, of the arson and knew defendant was involved." This claim by defendant is not supported by the incident report cited, however, because although it contains references to March 6, 1985, the report was dated May 31, 1985.

On the other hand, defendant refers to an entry in an Allstate diary, apparently made on March 6, 1985, that says "Rec'd call from Det Mazur [sic] of Union * * * he has stmt from insured stating he had someone burn his car for him. Still waiting for name of person who burnt [sic] car so req I did not send denial. Closed file after hearing from Det. will refer to fraud div." The Allstate diary, in fact, indicates earlier communications between the authorities and Allstate. On February 11, 1985, Detective Stehlgens called to say insured's car was found in Union "completely burnt--arson Union PD Det Stan Mazur is investigating." And on February 26, 1985, a conversation took place with "Livingston PD" in which it was communicated that the Livingston authority "will gt together w/ Union Det...."

On March 15, 1985, Detective Stehlgens filed a complaint in the Livingston Municipal Court against defendant, charging him with filing a false police report on January 22, 1985, in violation of N.J.S.A. 2C:28-4(b)(1). On March 28, 1985, defendant appeared without counsel at the Livingston Municipal Court and pleaded guilty to that offense. Before defendant's plea was accepted, the municipal court advised him of the charges against him, of his right to consult with an attorney, and of the possible penalties he faced. The following colloquy occurred between the municipal court and defendant:

COURT: Anyone promise you anything or threaten you in any way to induce you to enter this plea?


COURT: Do you do so voluntarily?


COURT: What's this all about? Why did you report your car stolen if it wasn't stolen?

DEFENDANT: Well someone did take it but I, I talked to some guy and I gave him some money to take the car. I just, I guess I wanted to collect on the insurance.

COURT: You were going to beat the insurance company? Is that what you did? You were going to report it stolen, have your buddy take it away and then try and collect from your insurance carrier.

DEFENDANT: Well I didn't know the guy.

COURT: Well so it wasn't your buddy, you had some stranger take it away.

DEFENDANT: That's right.

COURT: How much did you pay him?

DEFENDANT: $100.00

COURT: You mean he gets the car for $100.00 and he takes it to a chop shop and gets it all broken so they can use it for parts, you make $6,000.00 and ... they raise the premiums for everyone else.

DEFENDANT: I know I was wrong and I--they dropped the claim.

The trial court sentenced defendant to one year of probation, fined him $150, and ordered him to pay court costs and a $25 penalty to the Violent Crimes Compensation Board.

On July 2, 1985, the police received information from a person named Stewart Kaiser that defendant had admitted that he had his car burned. On August 28, 1985, defendant submitted to a polygraph examination at the Union County Prosecutor's Office. Defendant was told in advance of the questions to be asked and signed a waiver of rights. At the examination's conclusion, defendant was informed that his responses to the questions "Did you plan to have your car set on fire?" and "Before your car was set on fire, did you definitely know it was about to happen?" (to which he answered "No") indicated deception on his part. It was also the examiner's opinion from defendant's reactions during the test that he knew that gasoline was the accelerant used in the arson. On being told these results, defendant informed the investigator he had made arrangements with Andy to get rid of the car and that when he had asked Andy how this would be accomplished, Andy had said " 'Probably burn it.' "

On October 30, 1985, a Union County indictment was filed, charging defendant with third-degree arson with the purpose of collecting insurance, contrary to N.J.S.A. 2C-17-1b(3), and third-degree attempted theft by deception, contrary to N.J.S.A. 2C:20-4(a).

On December 30, 1985, defendant made a motion to dismiss the indictment on the grounds of mandatory joinder, double jeopardy, and the enforcement of a plea agreement. Defendant's motion was denied.

On January 14, 1986, defendant signed a certification in which he said that when he went to...

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