State of New Jersey v. Robert J. Kosch, Jr.

New Jersey Superior Court Appellate Division March 1, 2016

State of New Jersey v. Robert J. Kosch, Jr., 444 N.J. Super. 368 (2016)

133 A.3d 669

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2099-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

March 1, 2016 v. APPELLATE DIVISION ROBERT J. KOSCH, JR.,

Defendant-Appellant. __________________________________________________

Submitted December 8, 2015 – Decided March 1, 2016

Before Judges Fisher, Rothstadt and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 13-05-0188.

Taylor R. Ward, attorney for appellant.

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

At the conclusion of a ten-day trial, defendant was

convicted of theft, forgery, and other offenses charged in two

separate indictments. In this appeal, defendant argues, among

other things, that the evidence did not support the jury's

finding that he committed theft of immovable property, N.J.S.A. 2C:20-3(b). Although there was evidence in the record to

demonstrate an unlawful taking of an interest in immovable

property, we nevertheless vacate those convictions because the

jury was mistakenly instructed as to the nature of the interest

allegedly taken.

To put the issues in perspective, we briefly summarize the

evidence concerning defendant's involvement with three separate

properties: 8 Tanglewood Drive, Highland Lakes; 13 Tanglewood

Drive, Highland Lakes; and 61 Greenhill Road, Hamburg.

Defendant was acquitted of offenses involving a fourth property

also located in Highland Lakes; consequently, we need not

discuss the evidence relating to those charges.

The jury heard evidence from which it could find that

Margaret Green (a fictitious name1) purchased 8 Tanglewood on May

15, 2008, for $367,000; a mortgage encumbered the property.

Facing foreclosure proceedings in 2010, Green moved from the

premises and attempted to refinance.

On August 16, 2011, Green was advised by a neighbor that

someone was living in her home. Investigation revealed that an

1 The names of the property owners and renters in this opinion are fictitious.

2 A-2099-14T3 individual named Sam Rose was living in the residence and the

locks had been changed.

Green provided police with proof of ownership. It was

learned that the leasing of the property to Rose was facilitated

by an unrecorded deed which suggested Green transferred the

property to John Houle — an alias used by defendant — on June

27, 2011, for $100. The purported grantor's signature was

notarized,2 and the deed stated it was prepared by defendant.

Green denied executing this document.

When asked for documentation concerning his right to lease

the premises, Rose provided a fax of the Green-Houle deed, a

written statement from Green, and a copy of an agreement which

suggested Houle (defendant's alias) authorized defendant to act

as property manager for 8 Tanglewood. The address for Houle

contained in the deed was a non-existent address in Wayne;

defendant also used that address to apply for electric service

at 8 Tanglewood.

Green sold the property in 2013.

2 The notary testified he met defendant in 2006, when he performed work on defendant's home. He acknowledged notarizing documents for defendant in the past but denied notarizing the deed or anything for defendant in 2011.

3 A-2099-14T3 B

The machinations regarding 13 Tanglewood Drive are somewhat

different.

Janet Singer purchased the lot at this address for

approximately $50,000 and thereafter built a modular home. On

July 8, 2011, defendant left a letter in Singer's mailbox

expressing an interest in purchasing the home. Following

negotiations, defendant agreed to buy the home for $185,000. He

provided Singer with an initial deposit of $1000, and she agreed

to allow defendant to install utilities for the purpose of

obtaining a certificate of occupancy. Defendant provided an

additional $7500 in cash toward the purchase of the home.

In October 2011, Singer's suspicions were raised when she

received a call from the electric company seeking approval to

remove her name from the property's service account. She then

learned a family had moved into the premises. Upon

investigation, Singer was shown a deed by which she was

purported to have transferred the property to defendant on

August 18, 2011, for $100. She denied execution of this and all

III

Defendant appeals, arguing:

I. [THE THEFT OF IMMOVABLE PROPERTY CONVICTIONS] MUST BE DISMISSED BECAUSE THE STATE FAILED TO PRESENT FACTS SUFFICIENT TO CONSTITUTE A 'TRANSFER' OF IMMOVABLE PROPERTY.

A. The State failed to present evidence that Kosch's actions were sufficient to transfer an interest in immovable property . . . .

B. The jury charges were preju- dicially insufficient because they failed to define what is a trans- fer of an interest, and did not explain what the State alleged to be the operative act of each property.

II. [THE THEFT OF IMMOVABLE PROPERTY CHARGES] OF THE INDICTMENT DEPRIVED KOSCH OF DUE PROCESS AND FAIR NOTICE BY FAILING TO INCLUDE THE ESSENTIAL ELEMENTS AND FACTS OF THE CRIMES FOR WHICH HE WAS CONVICTED, AND THEREFORE MUST BE DISMISSED.

III. [THE FORGERY CONVICTIONS] MUST BE DISMISSED BECAUSE THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE OF FORGERY AS ALLEGED IN THE INDICTMENT, THE COURT FAILED TO PROPERLY CHARGE THE JURY, AND THE JURY VERDICT SHEET WAS MISLEADING.

A. [The] Forgery Counts . . . of the Indictment must be dismissed, because the State failed to present evidence of the operative

8 A-2099-14T3 act for which he is alleged to have committed.

B. The Court's failure to include the operative act in the Indict- ment in the jury charges resulted in prejudicial error and there- fore, the [Forgery] Counts must be dismissed.

C. The verdict sheet failed to distinguish a fourth degree for- gery and a third degree forgery, and is prejudicial error because it misled the jury from the crime charged.

IV. [N.J.S.A.] 2C:21-17.3(b) IS VAGUE AND IMPERMISSIBLY OVERBROAD, WHICH IS A VIOLATION OF DEFENDANT'S DUE PROCESS UNDER THE NEW JERSEY CONSTITUTION AND UNITED STATES CONSTITUTION.

A. "Personal identifying informa- tion" as defined by [N.J.S.A.] 2C:21-17.3(b) and the statutory inference are vague and overbroad as applied and a violation of the Defendant's rights under the New Jersey and United States Constitu- tions.

B. The State failed to present proof that Kosch possessed accur- ate personal identifying informa- tion pertaining to particular individuals.

V. PROFESSOR LINDA FISHER, THE STATE'S EXPERT WITNESS, HAS NO CRIMINAL EXPERIENCE OR RELEVANT SPECIALIZED KNOWLEDGE, AND THEREFORE, HER QUALIFICATION AS AN EXPERT AND TESTIMONY TO CRIMINAL THEFT MATTERS IS A NET OPINION AND SUBSTANTIALLY PREJUDICIAL, UNHELPFUL TO THE JURY, AND IS PLAIN ERROR.

9 A-2099-14T3 A. [Professor] Fisher, is cate- gorically unqualified in criminal matters and permitting her opinion testimony as to the criminality of a transfer of real property was severely prejudicial to Kosch.

B. [Professor] Fisher's expert testimony confused and misled the jury because the hypothetical nature of the questions was not sustained, there was extensive commingling of civil and criminal law without corrective instruct- tion, and incorrect legal conclu- sions were expounded, each sub- stantially prejudicing Kosch, and amounts to plain error.

VI. KOSCH CANNOT BE SENTENCED TO A TERM OF IMPRISONMENT FOR ANYTHING GREATER THAN A DISORDERLY PERSONS OFFENSE BECAUSE THE STATE FAILED TO PRESENT EVIDENCE THAT THE VALUE OF THE INTEREST STOLEN WAS ANY GREATER THAN $1.00.

A. Kosch cannot be convicted for more than a nominal value because the State failed to prove the value of the interest transferred as anything greater than nominal.

B. Jury instructions and the verdict sheet were inadequate with regard to grading of the Theft offenses for the properties in Question.

VII. KOSCH CANNOT BE GUILTY OF THEFT OF MOVABLE PROPERTY AS A MATTER OF LAW BECAUSE THE ALLEGED OWNERS DID NOT HAVE RIGHTFUL CONTROL OF THE PROPERTY AND THEY CONSENTED TO KOSCH'S CONTROL.

VIII. A NEW TRIAL SHOULD BE ORDERED DUE TO CUMULATIVE ERROR.

10 A-2099-14T3 We find insufficient merit in Points II, III, V, VI, VII and

VIII to warrant further discussion in a written opinion. R.

2:11-3(e)(2). For the reasons that follow, we agree the

immovable property convictions cannot stand, but we reject

defendant's argument that N.J.S.A. 2C:21-17.3(b) is vague and

impermissibly overbroad. Consequently, we affirm all convictions

except the immovable property convictions, and we remand for a

new trial on those counts.

Defendant argues the immovable property convictions cannot

stand because of a lack of evidence of an unlawful "transfer" of

an interest in immovable property or because the jury charge

lacked sufficient clarity as to the interest alleged to have

been transferred. Specifically, we consider: (a) the meaning and

scope of the governing statute, N.J.S.A. 2C:20-3(b); (b) whether

the evidence was sufficient to support the convictions in light

of our interpretation of N.J.S.A. 2C:20-3(b); and (c) the impact

of our statutory interpretation on the jury's verdict.

N.J.S.A. 2C:20-3(b) renders a person "guilty of theft if he

unlawfully transfers any interest in immovable property of

another with purpose to benefit himself or another not entitled

thereto." To understand the statute's reach, we ascertain the

11 A-2099-14T3 Legislature's intent by looking to the meaning of each

implicated word and phrase, namely: "immovable property," "any

interest," "property of another," and "transfer."

The Criminal Code describes the difference between movable

and immovable property by defining the former as "property the

location of which can be changed, including things growing on,

affixed to, or found in land, and documents, although the rights

represented thereby have no physical location," and by defining

"immovable property" as "all other property." N.J.S.A. 2C:20-

1(e). The word "interest" standing alone is not expressly

described, but the Code defines "[i]nterest in property which

has been stolen" as "title or right of possession to such

property." N.J.S.A. 2C:20-1(o). And "property of another"

includes property

in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.

[N.J.S.A. 2C:20-1(h).]

The statute's verb — "transfer" — is not defined by the Code.

12 A-2099-14T3 Before we consider the proper understanding and scope of

the word "transfer," we briefly mention the non-controversial

application of the defined terms to the charges in question.

First, there is no question that the three properties — 8

Tanglewood, 13 Tanglewood and 61 Greenhill — were immovable

within the meaning of N.J.S.A. 2C:20-1(e), because their

locations could not be changed. Second, the interests

encompassed by N.J.S.A. 2C:20-3(b) are broad in light of the

Code's definition of "[i]nterest in property which has been

stolen," N.J.S.A. 2C:20-1(o); "interest" would include not just

title to the immovable property but also the "right of

possession," ibid., or any other right derived from ownership or

possession of immovable property.5 See N.J.S.A. 1:1-2.6 And,

third, there is nothing about the Code's definition of

"[p]roperty of another" that would suggest defendant possessed

an interest in any of the properties of sufficient stature to

preclude conviction under this statute; in other words, there is

5 There is one limitation on this that we later discuss. 6 In N.J.S.A. 1:1-2, the Legislature provided definitions for various words and phrases to govern the meaning of statutes "[u]nless it be otherwise expressly provided or there is something in the subject or context repugnant to such construction." Therein, the Legislature defined "property" and "other property" as including "both real and personal property," and also defined "real property" as including "lands, tenements and hereditaments and all rights thereto and interests therein." Ibid.

13 A-2099-14T3 no question these three properties were owned by others and,

although, as the ostensible contract purchaser, defendant may

have possessed a partial interest in 13 Tanglewood and 61

Greenhill, he never lawfully acquired the interest he was

charged with taking. We, thus, turn to whether a "transfer"

occurred within the meaning of N.J.S.A. 2C:20-3(b).

Because the Code does not define "transfer," we first look

to N.J.S.A. 1:1-1, which counsels that "[i]n the construction of

the laws and statutes of this state, . . . words and phrases

shall be read and construed with their context, and shall,

unless inconsistent with the manifest intent of the legislature

or unless another or different meaning is expressly indicated,

be given their generally accepted meaning, according to the

approved usage of the language." See State v. Williams,

218 N.J. 576, 586

(2014); Levin v. Twp. of Parsippany-Troy Hills,

82 N.J. 174, 182

(1980); Fahey v. City of Jersey City,

52 N.J. 103, 107

(1968).

One legal dictionary defines "transfer" as the act of

"convey[ing] or remov[ing]" something "from one place or one

person to another," "to pass or hand over from one to another,"

and "to change over the possession or control" of something.

Black's Law Dictionary 1289 (9th ed. Abridged 2010). Obviously,

this is a very broad definition that encompasses actions

14 A-2099-14T3 inconsistent with a transfer of an interest in immovable

property; for instance, one cannot hand over immovable property

to another, nor can immovable property be removed from one place

to another. N.J.S.A. 1:1-2, however, requires consideration not

just of a word's generally accepted meaning but its context as

well; consequently, we find it more likely the Legislature

intended a consistent but narrower meaning than that contained

in dictionaries — that is, a meaning similar to that embodied in

the Statute of Frauds, which declares that a "[t]ransfer of an

interest in real estate" means "the sale, gift, creation or

extinguishment of an interest in real estate." N.J.S.A. 25:1-10.

In defining the word "transfer" in N.J.S.A. 2C:20-3(b) in

accordance with the Statute of Frauds, which has a certain

kinship with N.J.S.A. 2C:20-3(b), we examine the matter at hand

and conclude there was evidence from which the jury could find a

theft of immovable property.

The evidence in the record supported a finding that each

residence was the property "of another" and that defendant's

actions were "with purpose to benefit" himself. The legal

question to be pondered concerns whether a jury could

legitimately find defendant transferred, in the words of the

statute, "any interest" in these immovable properties.

Ibid.

In arguing an absence of proof in this regard, defendant

15 A-2099-14T3 interprets the statute's requirement that the State prove an

unlawful transfer of "any interest" as limited to an unlawful

transfer of title.7 He is mistaken.

The statute does not criminalize just the unlawful transfer

of title or the entire fee simple of immovable property; it

criminalizes the unlawful transfer of "any interest" — an

expression that fairly incorporates not only title but lesser

interests as well.8 Accordingly, defendant's argument that the

State failed to show he took for his own benefit title to any of

7 In this regard, defendant correctly argues a transfer of title is only complete upon delivery of a deed executed by the grantor, see H.K. v. State,

184 N.J. 367

, 382 (2005); Tobar Construction Co. v. R.C.P. Associates,

293 N.J. Super. 409, 413

(App. Div. 1996); In re Estate of Lillis,

123 N.J. Super. 280, 285

(App. Div. 1973), and that an unrecorded deed has limited legal impact, see N.J.S.A. 46:26A-1. But defendant's inability to effectively transfer title to these properties to himself does not mean he was incapable of stealing from the true owner some lesser interest in the property. 8 In many ways, the argument boils down to the significance of the Legislature's use of the word "any" in the phrase "any interest." The ordinary meaning of "any" is "one, some, or all indiscriminately of whatever quantity." Webster's Third New International Dictionary 97 (1971). If the Legislature intended to criminalize only the unlawful taking of title, it would not likely have said "any interest," which suggests the possibility of multiple interests and not just the single interest of title or fee simple, but would have chosen instead phrases or words such as "the interest," "all interest," or "title." In indefinitely referring to the object of the theft as "any interest," the Legislature expected our courts would view broadly the scope of the proscribed conduct and recognized the potential that an actor could violate the statute by taking less than title or the entire fee simple.

16 A-2099-14T3 the three properties is irrelevant. We look, instead, at the

evidence to determine whether defendant transferred an interest

in the property.

The evidence suggests that defendant unlawfully transferred

for his own benefit an interest — the right to possession or the

right to collect rents or both — in the immovable properties in

question. Specifically, the prosecution demonstrated defendant

utilized fraudulent or forged documents to falsely manifest to

others his ownership of these properties and, in doing so,

unlawfully collected rents on the properties. He may not have or

was otherwise incapable of actually transferring title of those

properties to himself,9 but, as we have demonstrated, that is not

the sole means of violating N.J.S.A. 2C:20-3(b).

9 Considering the elements necessary to consummate a valid transfer of real property, see n.

7, supra,

if we were to adopt defendant's proposed interpretation of N.J.S.A. 2C:20-3(b), the statute would have an extraordinarily limited reach. The Criminal Law Revision Commission provides an example: "a trustee, guardian, or other person empowered to dispose of immovable property of others, subjects himself to theft liability if he misappropriates the property in ways that may well be beyond effective relief by civil remedies, i.e., by a transfer . . . being made by the holder of legal title to a person acting in good faith." II Final Report of the New Jersey Criminal Law Revision Commission, comment on § 2C:20-3, at 222 (Oct. 1971). To be sure, this is one way to offend this statute, but there is nothing in either this commentary or the statute's language that would suggest it is the only way, see, e.g., Territory of Guam v. Gill,

61 F.3d 688

(9th Cir. 1995), cert. denied,

517 U.S. 1167

116 S. Ct. 1567

134 L. Ed. 2d 666

(continued)

17 A-2099-14T3 We lastly consider a category of conduct that may fall

outside this statute — the inconsequential taking of possession

by a squatter or holdover tenant. This limitation was suggested

by the New Jersey Criminal Law Revision Commission's commentary

on N.J.S.A. 2C:20-3:

[M]ere use of or occupation of land should not be classified as theft, even though it be an exercise of unauthorized control with a purpose of permanent appropriation. The immobility and relative indestructibility of real estate make unlawful occupancy a relatively minor harm for which civil remedies, supplemented by mild sanctions for trespassing, should be adequate.

[Final Report of the New Jersey Criminal Law Revision Commission, supra, at 222 (emphasis added).]

It may be inferable that in enacting N.J.S.A. 2C:20-3 the

Legislature agreed with these comments. See State v. Garofola,

252 N.J. Super. 356, 359-60

(Law Div. 1988); see also Cannel,

New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:20-

3 (2015) (noting that "the framers of this section wanted to bar

the criminalization of 'mere use or occupation of land'").

Assuming, without deciding, the Legislature's intention was

consistent with the Commission's concerns, we nevertheless

decline to interpret N.J.S.A. 2C:20-3(b) as placing beyond its

(continued) (1996), or that only empowered fiduciaries are capable of committing the offense set forth in N.J.S.A. 2C:20-3(b).

18 A-2099-14T3 reach all unlawful uses and occupations of immovable property.

Although the Legislature may not have intended to criminalize

the conduct of squatters and tenants, see

Garofola, supra,252 N.J. Super. at 358

; Model Jury Charge (Criminal), Theft of

Immovable Property (2011), we see nothing in the statute's plain

language to suggest an unlawful exercise of dominion or control

over immovable property — coupled with the actor's unlawful

leasing of the property to another — cannot be prosecuted under

this statute. What occurred here pales in comparison with the

type of de minimis conduct that concerned the Commission.

With this understanding of the meaning and scope of

N.J.S.A. 2C:20-3(b), we consider the evidence relevant to

defendant's three immovable property convictions.

As for 8 Tanglewood, through the creation of false

documents and the use of an alias, defendant created an

appearance of ownership by which he was able to lease the true

owner's immovable property to another. For the reasons we have

already set forth, we find no merit in defendant's argument,

which seems to be based on the lack of an actual transfer of

title, that he could not be convicted for having unlawfully

taken an interest in this property.

19 A-2099-14T3 The circumstances concerning 13 Tanglewood are different

but the result is the same. There, defendant and the property

owner entered into an agreement for defendant's purchase of the

property. Defendant, in fact, gave the owner a $1000 deposit

and later an additional $7500 toward the $185,000 purchase

price, and the owner agreed defendant could install utilities to

obtain a certificate of occupancy. Without ever completing the

purchase, defendant rented the premises to a third person

through use of a fraudulent, unrecorded deed.

To be sure, the evidence demonstrated that both the owner

and defendant lawfully possessed an interest in 13 Tanglewood.

The true owner held legal title, and defendant obtained an

equitable interest as contract purchaser, see Courtney v.

Hanson,

3 N.J. 571, 575

(1950); Marioni v. 94 Broadway, Inc.,

374 N.J. Super. 588, 612

(App. Div.), certif. denied,

183 N.J. 591

(2005), as well as a limited right to enter the premises

prior to closing. Defendant's arguably legitimate acquisition

of this limited property interest, however, does not mean the

immovable property or the additional interest he was alleged to

have unlawfully taken was not the "property of another." See

N.J.S.A. 2C:20-1(h). The unlawful acquisition or creation of

additional interests in 13 Tanglewood for his own benefit — that

do not fall within the arguable limited exception of squatting

20 A-2099-14T3 or holding over — fell within the ambit of N.J.S.A. 2C:20-3(b).

The State presented evidence from which defendant could have

been convicted of theft of an interest in 13 Tanglewood.

The evidence concerning 61 Greenhill is also different from

the other two situations. There, as we have observed, defendant

contracted with its owner, who, as part of the agreement,

executed a deed to be held in escrow pending a closing, which

was contingent on defendant's negotiation of a satisfactory

settlement with the mortgage holder. That contingency was never

met and defendant, having somehow obtained in the interim the

deed from the escrow agent, leased the property to another.

Again, evidence suggested defendant obtained an interest in the

property — as ostensible contract purchaser — but he did not

obtain a use and occupancy agreement or enter into any other

agreement that gave him the right to lease the premises to a

third person for his own benefit.10

For these reasons, we conclude the State presented evidence

of a theft of an interest in 8 Tanglewood, 13 Tanglewood, and 61

Greenhill.

10 Evidence suggested the possibility that defendant, without authority or agreement, removed the deed from escrow; the theft of such a document would not appear to constitute a violation of N.J.S.A. 2C:20-3(b) because the document would constitute movable property. See N.J.S.A. 2C:20-1(e) (defining "movable property" as including "documents, although the rights represented thereby have no physical location").

21 A-2099-14T3 C

Despite our conclusion that N.J.S.A. 2C:20-3(b) was

applicable to the type of thefts suggested by the evidence, we

conclude that the three immovable property convictions must be

reversed because the jury was not given sufficient guidance.

That is, we agree with defendant that he could not have

been convicted on this evidence of unlawfully taking "title" to

the properties, but, as we have determined, he could have been

convicted of unlawfully taking "an interest" in the properties.

The court implicitly asked the jury only to determine whether

the former, and not the latter, occurred. This is apparent from

the verdicts rendered by the jury. The jury found the value of

the immovable property taken exceeded $75,000. But when asked,

on the movable theft charges, to evaluate the "rental proceeds

rightfully belonging to [Martha Smith]" (the owner of 61

Greenhill) and "rental proceeds rightfully belonging to [Janet

Singer]" (the owner of 13 Tanglewood), the jury found those

proceeds had a value greater than $500 but less than $75,000.

Clearly, in assessing the immovable property charges, the jury

believed it was to determine whether defendant unlawfully took

something more than the rental proceeds — that he took the

immovable property itself. This was a conclusion the evidence

could not permit and, therefore, those convictions cannot stand.

22 A-2099-14T3 Contrary to defendant's argument, however, dismissal is not

the appropriate remedy. Instead, we vacate the judgment of

conviction insofar as it applies to counts one, six, and eight,

and we remand for a new trial in conformity with this opinion.

Defendant was charged in Indictment No. 13-05-0187 with

second-degree distributing, manufacturing or possessing fifty or

more items containing personal identifying information

pertaining to fifty or more separate persons, without

authorization and with knowledge he was facilitating a fraud or

injury to be perpetrated by anyone. N.J.S.A. 2C:21-17.3. This

one count was tried with the counts, discussed above, that were

set forth in Indictment No. 13-05-0188. Defendant argues this

statute is unconstitutionally vague and overbroad because

"personal identifying information" is not defined and because

the inference authorized by N.J.S.A. 2C:21-17.3(c)11

unconstitutionally eliminates the prosecution's obligation of

proving his state of mind. We disagree.

11 This provision states that the "[d]istribution, manufacture or possession of 20 or more items containing personal identifying information pertaining to another person or of items containing personal identifying information pertaining to five or more separate persons without authorization shall create an inference that the items were distributed, manufactured or possessed with knowledge that the actor is facilitating a fraud or injury to be perpetrated by anyone." N.J.S.A. 2C:21-17.3(c) (emphasis added).

23 A-2099-14T3 The presumption of validity attaches to every statute and

informs our review of this provision of the Criminal Code.

State v. Muhammad,

145 N.J. 23, 41

(1996). The burden of

establishing a statute's unconstitutionality is on the

challenger. State v. One 1990 Honda Accord,

154 N.J. 373, 377

(1998). Legislation "will not be ruled void unless its

repugnancy to the Constitution is clear beyond a reasonable

doubt."

Muhammad, supra,145 N.J. at 41

When addressing a dual overbroad and vagueness challenge,

"a court's first task is to determine whether the enactment

reaches a substantial amount of constitutionally protected

conduct," and if it does not, "then the overbreadth challenge

must fail." Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 494

102 S. Ct. 1186, 1191

71 L. Ed. 2d 362, 369

(1982); see also Town Tobacconist v. Kimmelman,

94 N.J. 85, 98

(1983); State v. Badr,

415 N.J. Super. 455, 467-68

(App. Div.

2010). In an overbreadth challenge, the "primary issue is not

notice or adequate standards, although these issues may be

involved." State v. Lashinsky,

81 N.J. 1, 16

(1979). A statute

may be found to be overly broad when it permits "police and

other officials to wield unlimited discretionary powers in its

enforcement."

Ibid.

(citation omitted). Defendant argues this

statute is unconstitutionally overbroad because it provides

24 A-2099-14T3 officials with power "so broad that the exercise of

constitutionally protected conduct depends on their own

subjective views as to the propriety of the conduct."

Ibid.

(citation omitted).

Defendant's contention that N.J.S.A. 2C:21-17.3(c)

infringes on constitutionally protected conduct apparently is

based on the individual's inalienable right "of acquiring,

possessing and protecting property." N.J. Const. art. I, § 1, ¶

1. In support of this challenge, he argues the statute leads to

"absurd results" because, in his view, the term "personal

identifying information" is overbroad.

A fair reading of the statute in this light12 reveals that

it does not, as defendant contends, criminalize mere possession

of personal identifying information. The statute's terms

"fairly read and properly understood" require law enforcement

officials to be able to refer to objective facts that would lead

a reasonable person to realize possession, manufacture, or

distribution of such information, "with knowledge that [he] is

12 "If the person distributes, manufactures or possesses 50 or more items containing personal identifying information pertaining to another person, or ten or more items containing personal identifying information pertaining to five or more separate persons, without authorization, and with knowledge that the actor is facilitating a fraud or injury to be perpetrated by anyone the person is guilty of a crime of the second degree." N.J.S.A. 2C:21-17.3(b)(2) (emphasis added).

25 A-2099-14T3 facilitating a fraud or injury," constitutes a violation of the

statute. N.J.S.A. 2C:21-17.3(b)(2). The additional knowledge

requirement ensures that mere possession of property containing

information, such as defendant's examples of a telephone book or

soccer roster, does not violate the statute.

Lashinsky, supra,81 N.J. at 18

Consequently, defendant's overbreadth challenge fails

because the statute does not restrict constitutionally protected

conduct, such as his general right to acquire and possess

property, only his right to acquire and possess property with

knowledge that he or another will use the property to facilitate

injury or fraud. N.J.S.A. 2C:21-17.3(b)(2);

Badr, supra,415 N.J. Super. at 470

In considering the next aspect of defendant's argument, we

observe Hoffman Estates directs that a court should examine

the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the chal- lenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.

26 A-2099-14T3 [

455 U.S. at 494-95

102 S. Ct. at 1191

71 L. Ed. 2d at 369

.13]

Defendant contends that ordinary people cannot understand

what is prohibited because N.J.S.A. 2C:21-17.3 does not define

"personal identifying information." He argues the vagueness

doctrine is meant to give "fair warning" to a person that an

enactment prohibits that person's conduct,

Badr, supra,415 N.J. Super. at 470

, and specifically the concept that laws should

give a "person of ordinary intelligence a reasonable opportunity

to know what is prohibited, so that he [or she] may act

accordingly," Hoffman Estates, supra,

455 U.S. at 498

102 S. Ct. at 1193

71 L. Ed. 2d at 371

; see also State v. Cameron,

100 N.J. 586, 591-93

(1985).

We find no merit in defendant's argument because the phrase

"personal identifying information" is defined. N.J.S.A. 2C:20-1

provides that "[i]n chapters 20 and 21, unless a different

meaning is plainly required," the phrase "personal identifying

information" means

13 When a statute clearly applies to a defendant's conduct, he or she may not successfully challenge it for vagueness. The rationale is evident: "to sustain such a challenge, the complainant must prove that the enactment is vague not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Hoffman Estates, supra,

455 U.S. at 495

n.7,

102 S. Ct. at 1191

n.7,

71 L. Ed. 2d at 369

n.7 (emphasis added).

27 A-2099-14T3 any name, number or other information that may be used, alone or in conjunction with any other information, to identify a specific individual and includes, but is not limited to, the name, address, telephone number, date of birth, social security number, official State issued identification number, employer or taxpayer number, place of employment, employee identification number, demand deposit account number, savings account number, credit card number, mother’s maiden name, unique biometric data, such as fingerprint, voice print, retina or iris image or other unique physical representation, or unique electronic identification number, address or routing code of the individual.

[N.J.S.A. 2C:20-1(v).]

Although this definition certainly covers a broad array of

information, it does so with sufficient clarity to eviscerate

defendant's vagueness challenge.

Badr, supra,415 N.J. Super. at 470

. "[N]o one of common intelligence need guess at this

statute's meaning."

Id. at 472

Applying the statute to the case, N.J.S.A. 2C:21-17.3

"clearly proscribe[s]" defendant's actions. Hoffman Estates,

supra,

455 U.S. at 495

102 S. Ct. at 1191

71 L. Ed. 2d at 369

At trial, the State presented evidence that defendant was

desirous of contacting owners of distressed properties. To that

end, defendant hired an individual who testified he performed

159 skip traces for defendant that included finding a person's

new residence and other identifying information, such as birth

28 A-2099-14T3 dates, social security numbers, associates and relatives. If

defendant had trouble locating a person, the skip tracer would

provide further information, including the identification of

prior litigation, relatives and neighbors. For example, he

rendered a report that provided Green's bankruptcy records, date

of birth, current residence, and social security number.

At trial, the State called Detective Voris, who testified

he retrieved records of the skip traces from defendant's office,

demonstrating defendant was aware he was in possession of "50 or

more items containing personal identifying information

pertaining to another person." N.J.S.A. 2C:21-17.3(b)(2). If

defendant contemplated his actions in conjunction with the

statute, he would have understood the statute's prohibition.

N.J.S.A. 2C:21-17.3;

Badr, supra,415 N.J. Super. at 470

. We

conclude that N.J.S.A. 2C:21-17.3, as applied to defendant's

conduct, was not unconstitutionally vague.

Badr, supra,415 N.J. Super. at 473

Lastly, turning to defendant's burden of proof argument,

the fact that N.J.S.A. 2C:21-17.3(c) permits a jury to infer

defendant possessed "20 or more items containing personal

identifying information . . . with knowledge that [he] is

facilitating a fraud or injury" does not render the statute

unconstitutional. State v. Humphreys,

54 N.J. 406, 414

(1969).

29 A-2099-14T3 Defendant's argument fails because he conflates inferences with

presumptions. A "presumption is compulsory and prima facie

establishes a fact to be true" unless disproved.

Ibid.

"An

inference carries no such force as a matter of law[;] . . . a

presumption is a mandatory deduction, born as a matter of law,

while an inference is a permissive deduction which the reason of

the jury may or may not reach without express direction of the

law."

Ibid.

(emphasis removed).

The statute in question authorizes an inference based on

certain specific facts; it does not compel the jury to draw that

inference and convict on the inference alone. State v. DiRienzo,

53 N.J. 360, 376

(1969). Accordingly, the burden of proof

remains with the State, and defendant's possession of more than

twenty items of personal identifying information only creates a

circumstance by which a jury could "decid[e] whether the State

has proved guilty knowledge beyond a reasonable doubt."

Id. at 376-77

; see also

Humphreys, supra,54 N.J. at 414

To summarize, we conclude defendant is entitled to a new

trial on the three immovable property counts. The evidence

precludes the jury's consideration of whether the interest

defendant is charged with stealing is title to those three

properties; instead, the evidence on those counts limits the

30 A-2099-14T3 question to whether defendant stole a lesser interest — the

owner's right to collect rents on those properties.

Consequently, we also conclude that once those three counts are

finally adjudicated, defendant should be resentenced on all

convictions, including those with which we have not intervened.

If defendant is convicted on any or all of the immovable

property counts at the conclusion of the new trial, the judge

should pay particular attention at sentencing to the fact that

any convictions on the immovable property counts will likely

bear great similarity to the conduct for which defendant was

found guilty on the theft of movable property charges; we do not

now need to determine, however, whether those convictions should

merge for sentencing purposes.

Affirmed in part, reversed in part, and remanded for a new

trial and resentencing. We do not retain jurisdiction.

31 A-2099-14T3

Reference

Cited By: 8 cases
Status: Published