STATE OF NEW JERSEY v. GREGORY GRIFFIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6587-03T46587-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY GRIFFIN,

Defendant-Appellant.

 

Submitted: November 16, 2005 - Decided January 12, 2006

Before Judges Fall and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Number 2003-03-802.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald T. Thelander, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gregory Griffin appeals from his conviction of third-degree stolen property, N.J.S.A. 2C:20-7, and from the extended-term sentence imposed thereon. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

Defendant was charged in Essex County Indictment Number 2003-03-802 with third-degree receipt of stolen property, N.J.S.A. 2C:20-7 (count one); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(6) (counts two and three); fourth-degree possession of a weapon, an automobile, under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5d (count four); two counts of third-degree possession of a weapon, an automobile, for an unlawful purpose, N.J.S.A. 2C:39-4d (counts five and six); two counts of third-degree criminal mischief, N.J.S.A. 2C:17-3 (counts seven and eight); and second-degree eluding a police officer, N.J.S.A. 2C:29-2b (count nine).

Tried to a jury between June 18 and 20, 2003, defendant was convicted of the third-degree receiving stolen property charge contained in count one, and was acquitted of all other charges. At sentencing, the trial judge granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3a, and sentenced defendant to a term of imprisonment of eight years with a four-year period of parole ineligibility, consecutive to a term then being served.

The charges against defendant arose from an incident occurring on August 11, 2001, in Newark. On August 8, 2001, a 2001 gray BMW automobile owned by Roy McLean was stolen in Millburn. At approximately 10:54 p.m., Newark police officers received a report of two vehicles driving erratically. Upon investigating, they saw that one of the vehicles was McLean's BMW vehicle, which was occupied by defendant and a friend. When the officers had the BMW surrounded, the vehicle was driven head-on into one of the police patrol vehicles. Thereafter, defendant fled on foot and was apprehended. The officers identified defendant as the driver of the vehicle. A witness produced by defendant testified that defendant had been a passenger in the vehicle. The other occupant, who had fled from the scene, was never apprehended or identified.

On appeal, defendant presents the following arguments for our consideration:

POINT ONE

THE TRIAL JUDGE'S FAILURE TO CHARGE THAT IN ORDER TO CONVICT THE DEFENDANT OF RECEIVING STOLEN PROPERTY, THE STATE HAD TO IN FACT PROVE BEYOND A REASONABLE DOUBT THAT THE PROPERTY, IN THIS CASE THE CAR, WAS IN FACT STOLEN, VIOLATED DEFENDANT'S RIGHTS OF DUE PROCESS OF LAW AND A FAIR TRIAL (Not Raised Below).

POINT TWO

THE TESTIMONY OF DETECTIVES COSGROVE AND ARCE THAT THEY HAD RECEIVED OVER THE POLICE RADIO A COMPLAINT CALL ABOUT A GRAY BMW DRIVING ERRATICALLY IN THE AREA VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW AND A FAIR TRIAL (Partially Raised Below).

POINT THREE

THE DEFENDANT'S DISCRETIONARY PERSISTENT OFFENDER, EXTENDED TERM SENTENCE OF EIGHT YEARS WITH FOUR YEARS OF PAROLE INELIGIBILITY VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY (Not Raised Below).

POINT FOUR

THE DEFENDANT'S PERSISTENT OFFENDER EXTENDED BASE TERM OF EIGHT YEARS WITH FOUR YEARS OF PAROLE INELIGIBILITY FOR HIS THIRD-DEGREE OFFENSE OF RECEIVING STOLEN PROPERTY, IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

Defendant argues that the trial court erred by instructing the jury that it was not required to find beyond a reasonable doubt that the vehicle had in fact been stolen. In instructing the jury on the receipt of stolen property charge, N.J.S.A. 2C:20-7a, the judge stated in relevant part:

Count one, receiving stolen property. This charge is based on a statute which reads in pertinent part as follows:

A person is guilty of theft if he knowingly receives mobile property of another knowing that it has been stolen or believing that it probably has been stolen.

The elements of this offense that must be proven beyond a reasonable doubt are as follows:

First of all, that the defendant received movable stolen property of another;

Second of all, that the defendant acted knowingly when he received the movable property of another;

Third, that the defendant either knew that the property had been stolen or believed that it had probably been stolen at the time that he received the property.

* * * *

The third element that the State must prove beyond a reasonable doubt is that the defendant either knew the property was stolen or believed that it had probably been stolen at the time that he received the property.

* * * *

The State is not required to prove that the property in fact had been stolen. On the other hand, mere proof that the property was stolen is not sufficient to establish this element. Rather, what the State must prove is that the defendant either knew that the property was stolen or believed that it had probably been stolen.

[Emphasis added.]

There was no objection to this charge by defendant. See R. 2:10-2. However, a trial court has a duty to correctly instruct the jury as to the elements of each offense charged regardless of the requests made by counsel. State v. Moore, 113 N.J. 239, 288 (1988). Because correct jury charges are especially critical in guiding deliberations in criminal matters, improper instructions on material issues are presumed to constitute reversible error. State v. Jenkins, 178 N.J. 347, 361 (2004).

In State v. Hodde, 181 N.J. 375 (2004), the Court held that the statutory language of N.J.S.A. 2C:20-7a "requires the State to prove that the property has been stolen[.]" Id. at 376-77. In reviewing the language contained in N.J.S.A. 2C:20-7a that "a] person is guilty of theft if he knowingly received or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen[,]" emphasis added, the Court concluded that "[n]othing in the text or legislative history indicates that the Legislature intended to allow the State to convict on mere belief that the enumerated items had been stolen." Id. at 382.

The Court stated that "by repeatedly employing the phrase, 'the property stolen,' [in the chapter in the Code of Criminal Justice denoted 'Theft and Related Offenses,' N.J.S.A. 2C:20-1 to -37], the Legislature evinced an intent that a person only could be found guilty of receiving stolen property if the property was actually stolen." Id. at 382.

The Court held that the language "believing that it is probably stolen[,]" in N.J.S.A. 2C:20-7a "refers to the scienter necessary for the crime[,]" but "does not address, much less dispense with, the requirement that the property itself possess the characteristic of being stolen." Id. at 383.

The fact that Hodde was decided subsequent to defendant's trial did not relieve the trial court of the requirement of instructing the jury that to convict defendant of a violation of N.J.S.A. 2C:20-7a it was required to prove beyond a reasonable doubt that the vehicle was stolen at the time it was possessed by defendant. See State v. Vick, 117 N.J. 288, 290-91 (1989) (holding that it was plain error for the trial court to fail to instruct the jury as to the State's burden of proving the absence of a gun permit where defendant's trial occurred before the Court's decision in State v. Ingram, 98 N.J. 489, 494-95 (1985), that held that absence of a permit was an essential element of the offense for which defendant was convicted).

Additionally, the fact that here the State arguably proved, through the testimony of the vehicle's owner, beyond a reasonable doubt that the vehicle occupied by defendant was actually stolen did not insulate or eliminate the court's error in failing to charge the jury that the State must prove beyond a reasonable doubt that the car was actually stolen. See Vick, supra, 117 N.J. at 291 (stating that "[w]e realize that it is difficult to explain why juries should be required to make a finding of what seems to be the obvious. The short answer is that there is simply no substitute for a jury verdict. The long answer is that the defense posed in this case did not inescapably posit guilt of the offense"). Here, the only thing admitted by defendant was that he was a passenger in the vehicle. Based on the jury's verdict acquitting defendant of the aggravated assault, weapons, criminal mischief and eluding charges, it appears the jury accepted defendant's version, and rejected the State's contention that he had been the driver the vehicle.

Here, as in Hodde, supra, "[b]ecause the trial court did not advise the jury of the need to determine that the property was actually stolen, but instead instructed the jury that the State had no burden to prove that fact, the jury was misinformed about the elements of the crime. Therefore, defendant's conviction must be reversed and the matter remanded for a new trial." 181 N.J. at 385.

Because we conclude that defendant's conviction must be reversed on this basis, we need not address the remaining arguments advanced by defendant.

The judgment of conviction is reversed and the matter remanded for trial on the charge in count one of Indictment Number 2003-03-802, third-degree receipt of stolen property, N.J.S.A. 2C:20-7a.

 

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A-6587-03T4

January 12, 2006