Opinion
DOCKET NO. A-1046-11T3
04-03-2012
STATE OF NEW JERSEY, Plaintiff-Appellant, v. JUSTIN BRITT, Defendant-Respondent.
Thomas S. Ferguson, Warren County Prosecutor, attorney for appellant (Victor R. Jusino, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Harold J. Bush, Designated Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 11-04-0133.
Thomas S. Ferguson, Warren County Prosecutor, attorney for appellant (Victor R. Jusino, Assistant Prosecutor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Harold J. Bush, Designated Counsel, on the brief). PER CURIAM
In this appeal, we examine the dismissal of an indictment charging defendant with receiving stolen property because of defendant's prosecution and conviction in Pennsylvania for stealing the same property. We affirm because the judge did not abuse her discretion in concluding that the Pennsylvania conviction was based "on the same conduct" charged in the indictment and did not err in determining that New Jersey's interest was "adequately served" by the Pennsylvania prosecution. N.J.S.A. 2C:1-3(f).
The circumstances underlying the judge's decision to dismiss the indictment are relatively simple. Defendant entered into a negotiated plea agreement in the Pennsylvania Court of Common Pleas in Northampton County and, on October 5, 2010, entered a guilty plea to a single count of theft. That conviction was based on defendant's theft, on January 6, 2010, of several computer games, play stations and other computer equipment from a home in Easton, Pennsylvania. Defendant was sentenced to a term of incarceration between thirty days and one year and ordered to pay $1,300 in restitution. He was released after serving seventy-seven days in Northampton County Prison.
On April 27, 2011, the Warren County Grand Jury handed up an indictment charging defendant with a single count of third-degree theft, N.J.S.A. 2C:2 0-7, "by knowingly receiving movable property . . . believing it was probably stolen," the same property stolen from the Easton home. The trial judge granted defendant's motion to dismiss the indictment pursuant to N.J.S.A. 2C:1-3(f), and the State appealed.
Defendant had, on March 17, 2010, been charged in a municipal complaint with the same conduct.
N.J.S.A. 2C:1-3(f) authorizes the dismissal of a criminal prosecution "where it appears that such action is in the interests of justice because the defendant is being prosecuted for an offense based on the same conduct in another jurisdiction and this State's interest will be adequately served by a prosecution in the other jurisdiction." In considering the propriety of the dismissal, we focus, as did the trial judge, on (1) whether the prosecution was for an offense based on the same conduct defendant was prosecuted for elsewhere, and (2) whether the State's interests were adequately served by the former prosecution. State v. Gruber, 362 N.J. Super. 519, 527 (App. Div.), certif. denied, 178 N.J. 251 (2003). We find no abuse of discretion in the trial judge's affirmative answers to both those questions or her conclusion that the interests of justice required dismissal.
First, N.J.S.A. 2C:1-3(f) requires a determination as to whether an indictment is "for an offense based on the same conduct in another jurisdiction." In Pennsylvania, defendant pled guilty to "unlawfully tak[ing], or exercis[ing] unlawful control over, movable property of another with intent to deprive him thereof." 18 Pa. Cons. Stat. § 3921(a). The indictment here charged defendant with violating N.J.S.A. 2C:20-7, by "knowingly receiving movable property" belonging to another. We recognize these charges are not identical; in Pennsylvania, defendant was charged with the theft of property and here defendant was charged with receiving the same property knowing it was stolen. The question, however, is not whether the indictment charges defendant with precisely the same conduct, only whether it constitutes substantially the same conduct. See Gruber, supra, 362 N.J. Super. at 532 (holding that N.J.S.A. 2C:1-3(f) "merely requires as a precondition to dismissal prosecution 'for an offense based on the same conduct,' [and] does not demand substantially identical charges"). Considering our Legislature's consolidation of theft offenses, N.J.S.A. 2C:20-2(a), and the well-accepted principle that "a defendant cannot be convicted of both larceny and receiving the same goods," State v. Bell, 55 N.J. 239, 244 (1970); State v. Cole, 204 N.J. Super. 618, 630 (App. Div. 1985); we agree with the trial judge's determination that the indictment charges defendant with essentially the same conduct for which he was convicted in Pennsylvania.
Although N.J.S.A. 2C:20-7 additionally criminalizes knowingly "bring[ing] [stolen property] into this State," the indictment did not contain that allegation. Even were we to read the indictment broadly to include this additional element, we do not view it as a materially distinguishing fact that would warrant a different result, particularly in light of our Legislature's consolidation of theft offenses. See N.J.S.A. 2C:20-2(a).
Second, in examining whether this State's interests were adequately served by the Pennsylvania prosecution, we consider the range of potential sentences and the actual sentence imposed in the former prosecution. Gruber, supra, 362 N.J. Super. at 533-34; State v. Ellis, 280 N.J. Super. 533, 551-52 (App. Div. 1995). Defendant was sentenced in Pennsylvania to a term of incarceration between thirty days and one year in prison. A conviction in New Jersey for the third-degree theft offense charged here authorized a prison term between three and five years, N.J.S.A. 2C:43-6(a)(3), but a term of probation might also be appropriate, N.J.S.A. 2C:43-2(b)(2). As a result, the judge reasonably concluded that the State's interests in the penal consequences of defendant's conduct were "adequately served" by the prison term imposed by the Pennsylvania court and defendant's service of seventy-seven days in a Pennsylvania prison. Additionally, we find no error in the judge's dismissive approach to the alleged New Jersey victim's monetary loss.
Defendant argued to the trial judge that the State's interest was adequately served by the seventy-seven days defendant spent incarcerated in a Pennsylvania prison in light of the State's plea recommendation that defendant serve 364 days in the Warren County Correctional Facility. In Gruber, upon which the State relies in arguing the plea offer should not be considered in such an analysis, we rejected as "speculative" an argument about "the possibility of a plea bargain." Gruber, supra, 362 N.J. Super. at 537. When a plea offer is extended, like here, however, the matter ceases to be speculative and, in our view, the plea offer would be relevant in gauging the State's interest in the current prosecution when compared to the results of an earlier prosecution. Notwithstanding, we give that factor no weight here because the trial judge disregarded the written plea offer extended to defendant.
The State urges the fact that defendant's alleged actions in New Jersey harmed a different victim than the theft in Pennsylvania. We agree with the trial judge, however, that this circumstance has little bearing here. The alleged New Jersey victim's only concern was for its monetary loss, which could be adequately redressed civilly. We do not give any weight to the judge's determination that the alleged victim was, in fact, a "fence" for stolen goods because -- other than the experienced trial judge's reference to having "heard time and time again about stolen property being fenced" at the alleged victim's place of business -- there was no evidence in the record to support that entity's complicity. Certainly, if the judge was correct about the alleged New Jersey victim dealing in stolen goods, any restitution for that entity would not be an interest the State would likely wish to see served.
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In examining the application of N.J.S.A. 2C:1-3(f), we are constrained from intervening in the absence of the trial judge's abuse of discretion. Gruber, supra, 362 N.J. Super. at 527; Ellis, supra, 280 N.J. Super. at 552. In considering defendant has been prosecuted, convicted and sentenced, and has served his sentence, in a sister state, for theft, we are satisfied, as was the trial judge, that it would be contrary to "the interests of justice," N.J.S.A. 2C:1-3(f), to allow defendant to face prosecution in this State for theft, in any of its forms, of the same property.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION