Opinion
DOCKET NO. A-2070-10T3
09-16-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUIS BATIZ, Defendant-Appellant.
Joseph C. Grassi argued the cause for appellant (Barry, Corrado, Grassi & Gibson, attorneys; Mr. Grassi and James E. Moore, on the brief). Marianne V. Rogers, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Ms. Rogers, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 26-10.
Joseph C. Grassi argued the cause for appellant (Barry, Corrado, Grassi & Gibson, attorneys; Mr. Grassi and James E. Moore, on the brief).
Marianne V. Rogers, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Ms. Rogers, of counsel and on the brief). PER CURIAM
Defendant Luis Batiz appeals a disorderly persons theft conviction, N.J.S.A. 2C:20-3(a), after a trial de novo on the record in the Law Division pursuant to Rule 3:23. For the reasons that follow, we reverse.
In addition to the theft conviction, defendant was convicted in the municipal court of the petty disorderly persons offense of disorderly conduct, N.J.S.A. 2C:33-2(a), the disorderly persons offenses of obstruction, N.J.S.A. 2C:29-1(a), and hindering apprehension, N.J.S.A. 2C:29-3(a). After the November 19, 2010 trial de novo, the Law Division judge determined that the statutory elements for the offenses other than theft were not established and found defendant guilty only of theft.
The facts can be briefly summarized. At the municipal court trial, the State presented one witness, State Police Trooper DeTullio. DeTullio testified that on February 23, 2010, he was dispatched to a house in Fairfield Township. Upon arrival, he saw a moving van with the name "Pack Rat Moving Company" (Pack Rat) in defendant's driveway to the right of his home. A Honda CRV owned by defendant's wife blocked the van's access to the street. A second Pack Rat vehicle was parked on the street in front of the house.
Trooper DeTullio did not place his first name on the record.
Defendant explained to DeTullio that the moving company was attempting to remove its storage pod, filled with his personal belongings, from his driveway; as a result, he in turn had hidden the "key tool" or jack which secured the pod to the moving van. At DeTullio's urging, defendant produced the item, defendant's wife moved her CRV, and both Pack Rat vehicles left the residence, pod in tow.
The record contains no information regarding the dispute between defendant and Pack Rat.
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Defendant contends that the State failed to prove theft beyond a reasonable doubt. He also asserts that his claim of right established an absolute defense to the charge. See N.J.S.A. 2C:20-2(c)(2).
The State's position that defendant's acknowledgment that he removed the key in order to prevent the removal of the pod, when joined with the circumstantial evidence, was sufficient proof of theft. The State also asserts defendant could not raise the claim of right argument since he did not own the key and, therefore, his removal of the key constituted theft. At oral argument, the State advanced the further theory that Pack Rat's ownership of the pod barred defendant from successfully asserting a claim of right defense based on his ownership of the pod's contents.
We review the record to determine if the conclusions reached in the Law Division were based on sufficient credible evidence. State v. Johnson, 42 N.J. 146, 162 (1964). In the process, we accord substantial deference to the trial court's credibility determinations. State v. Barone, 147 N.J. 599, 615 (1997). We do not give particular deference, however, to the trial court's interpretation of the law. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
Theft is defined as follows: "[a] person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3. Deprive is defined as "(1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value . . . or (2) [to] dispose or cause disposal of the property so as to make it unlikely that the owner will recover it." N.J.S.A. 2C:20-1(a).
If for the sake of our discussion we assume the State proved the item did not belong to defendant, the State nonetheless did not prove that defendant's removal of the key was intended to be permanent, for an extended period of time, or even intended to make it unlikely that the moving company would recover it. Rather, the State proved only that defendant's conduct was intended to prevent the towing of the pod and his belongings from his property until such time as his dispute with the moving company was resolved. In other words, nothing DeTullio said in his brief testimony established a purpose to deprive the rightful owner of the object, within the meaning of the statute.
Moreover, the State's position that the defense of claim of right is restricted solely to property in which a defendant has an ownership interest is not borne out in the case law. See State v. Taplin, 230 N.J. Super. 95, 96-97, 100 (App. Div. 1988) (defendant entitled to present a claim of right defense, and court must instruct the jury accordingly, where defendant helped a friend remove a television from the friend's home, assuming the friend had the right to remove it).
The statute permits the defense to be asserted where a person "[a]cted under an honest claim of right to the property or service involved or that he had a right to acquire or dispose of it as he did[.]" N.J.S.A. 2C:20-2(c)(2). In this case, defendant acted on the belief that he had the right to prevent removal of the pod from his own property, because his personal belongings were inside. Although the trooper convinced defendant to return the key, it is undisputed that defendant took the object, which lacks any inherent value, solely to protect his own personalty. Thus we disagree with the State's further contention that the defense was inapplicable because the pod belonged to Pack Rat even though the contents belonged to defendant. Pack Rat's ownership of the pod or the key does not prevent defendant from successfully asserting the defense because without attempting to control the pod he simply could not protect his own property.
We are mindful of "the fundamental premise that criminal laws are to be strictly construed." State v. Hodde, 181 N.J. 375, 379 (2004). The State did not prove theft or present evidence which defeated the claim of right defense. Thus, defendant should not have been found guilty.
Reversed and remanded.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION