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

NOT FOR PUBLICATION WITHOUT THE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.
I
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.
A
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
other related documents.
The State also presented evidence that the property was
leased to Marie Arthur. When applying for financial assistance
from the Department of Community Affairs, Arthur provided a copy
4 A-2099-14T3
of a lease, which she and defendant had signed, obligating
Arthur to pay defendant $1415 per month. A copy of the deed was
also provided, but without a second page — the page that would
have contained the grantor's signature.
An attorney retained by defendant to represent him with
regard to the transfer of 13 Tanglewood testified he was advised
there was a signed deed but he claimed he never saw it and was
told by Singer's attorney that she never signed a deed. No
closing ever occurred.
Singer later sold the property to another for $215,000.
C
Martha Smith purchased a residence located at 61 Greenhill
Road in Hamburg in 2006 for $243,800. The property was burdened
by a mortgage. Smith encountered financial difficulties, and a
tax lien was recorded. In 2010, defendant, who was aware of the
lien, advised Smith of his interest in purchasing the property.
When they met, defendant explained he had been very successful
in buying properties in distress. Smith authorized defendant to
negotiate a settlement with the mortgage holder, and she agreed
to transfer the property to him for the settlement amount.
Defendant's attorney at the time sent Smith a letter of
undertaking, which she signed. And Smith signed a deed to be
5 A-2099-14T3
held in escrow by defendant's real estate attorney until the
settlement with the mortgagee was paid off.
After waiting two years, Smith wrote to defendant's then
attorney seeking return of the escrowed deed. Unbeknownst to
Smith, defendant had leased 61 Greenhill Road to Marianne King
in January 2012 for $1100 per month; King testified she believed
defendant was the owner of the property. The property was later
leased to Sarah Van Wagner at the rate of $1000 per month.
II
After hearing evidence about these and other events, the
jury found defendant guilty of: two counts of second-degree, and
one count of third-degree, theft of immovable property by
unlawful taking or disposition, N.J.S.A. 2C:20-3(b); two counts
of third-degree theft of movable property by unlawful taking or
disposition, N.J.S.A. 2C:20-3(a); two counts of third-degree
forgery, N.J.S.A. 2C:21-1(a)(2); and one count of second-degree
trafficking in personal identifying information pertaining to
fifty or more separate persons, N.J.S.A. 2C:21-17.3.3
Defendant unsuccessfully moved for judgment of acquittal
or, in the alternative, for a new trial, and he was later
sentenced to an aggregate twenty-year prison term, with a six-
3
This last conviction was based on a charge contained in a
separate indictment.
6 A-2099-14T3
year period of parole ineligibility. Specifically, the judge
imposed the following:
— count one: a fifteen-year prison term,
subject to a six-year period of parole
ineligibility, for second-degree theft of
immovable property (8 Tanglewood);
— count two: five years for third-degree
forgery (concerning 8 Tanglewood);
— count six: eight years for second-degree
theft of immovable property (61 Greenhill);
— count seven: five years for third-degree
theft of movable property (61 Greenhill);
— count eight: five years for third-degree
theft of immovable property (13 Tanglewood);
— count nine: five years for third-degree
theft of movable property (13 Tanglewood);
— count ten: five years for third-degree
forgery (13 Tanglewood); and
— count "eleven"4: seven years for second-
degree trafficking in items containing
personal identifying information.
The judge ordered that the prison terms on counts one, six,
eight and eleven — the three immovable property theft
convictions and the personal information conviction — run
concurrently with each other, and that the other sentences were
also to run concurrently with each other, but that the prison
4
This "eleventh" count was actually the tenth count of a
separate indictment; that count was tried together with the
counts in this indictment. In the jury verdict sheet, it was
referred to as count eleven.
7 A-2099-14T3
terms imposed in the second group were to run consecutively to
the prison terms imposed in the first group of convictions.
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.
IV
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.
A
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.
B
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.
V
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.
VI
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