cab ride. N.J.S.A. 2C:20-2a only applies to the
“involuntary transfer of the same property.” To instruct
the jury otherwise, would pervert the State’s charging
discretion. Where the State and defendant present
different thefts, the trial court should analyze to see if the
defendant’s theft presentation is: 1) a lesser included
offense; 2) or whether the subject matter of the theft
relates to the harm protected against. Freeman, supra.
Only if the theft is a lesser included or relates to the harm
protected against should the trial court charge the jury
with the theft in the defense presentation. Ibid.
However, the trial court’s instruction must first state that
if the jury believes the defendant’s version, defendant
must be acquitted of the State’s theft charges. Freeman,
324 N.J. Super. at 469.
With consolidation, the charges which would have
been dismissed under prior law survive motions for
acquittal. In State v. Powell, 182 N.J. Super. 386 (Law
Div. 1981), a defendant indicted for receiving stolen
property, N.J.S.A. 2C:20-7, was convicted of theft by
unlawful taking, N.J.S.A. 2C:20-3a, when the proofs
adduced at trial indicated that the defendant was actually
the thief. Id. at 387-388.
N.J.S.A. 2C:20-2b sets forth the grading of the theft
offenses, which is now mirrored in the shoplifting
subsection. N.J.S.A. 2C:20-11 as amended by Pub. L.
2000, ch. 16, § 1 (effective April 28, 2000). Computer
theft, N.J.S.A. 2C:20-23 et seq., and government benefits
theft, N.J.S.A. 2C:20-35 et seq., are graded somewhat
differently.
Where a defendant steals a motor vehicle which
exceeds a certain value, he should be tried for the more
serious second-degree crime based on the value deprived
rather than the third-degree crime based on the nature of
the property stolen. State v. Eure, 304 N.J. Super. 469
(App. Div.), certif. den., 152 N.J. 193 (1997). A similar
analysis should apply to firearms, vessels, boats, horses,
domestic companion animals or airplanes. N.J.S.A.
2C:20-2b(2)(b). Motor vehicle theft triggers penalties
and mandatory motor vehicle license suspensions, which
may be consecutive. N.J.S.A. 2C:20-2.1; State v.
Eisenman, 153 N.J. 462, 477 (1998); State v. Black, 153
N.J. 438 (1998); State v. Rama, 298 N.J. Super. 339
(App. Div. 1997), aff’d o.b., 153 N.J. 162 (1998); but see
State in the Interest of V.M., 279 N.J. Super. 535 (App.
Div. 1995)(holding that mandatory penalties do not
apply to a juvenile delinquent who is sentenced to a
review period under N.J.S.A. 2A:4A-43b(1); State in the
Interest of N.S., 272 N.J. Super. 492, 497 (Ch. Div.
1993)(same). Shoplifting three pieces of bubble gum
was dismissed as a de minimis offense. N.J.S.A. 2C:2-11;
State v. Smith, 195 N.J. Super. 468 (Law Div. 1984).Theft of certain matter is not value sensitive. Theft
of human remains is a second-degree crime. N.J.S.A.
2C:20-2b(1)(e) (effective May 3, 1999). Theft of a
controlled dangerous substance is either a second or
third-degree crime, depending on the weight of the
substance. Compare N.J.S.A. 2C:20-2b(1)(c) with
N.J.S.A. 2C:20-2b(2)(c). It is a third-degree crime to
steal public records, research property, prescription
blanks, and access devices. N.J.S.A. 2C:20-2b(2)(g),
2b(2)(I), 2b(2)(j), 2b(2)(k).II. ELEMENTS
A. GenerallyProperty is broadly construed to include anything of
value. N.J.S.A. 2C:20-1g; see, e.g., State v. Dixon, 114
N.J. 111, 114 (1989). Property of another is just that
which does not belong to the actor alone. N.J.S.A.
2C:20-1h; State v. Mejia, 141 N.J. 475, 495 (1995).
When the actor possesses a joint legal interest in the
property deprived, his action constitutes theft when he is
not privileged to infringe upon another’s legal interest.
N.J.S.A. 2C:20-1h. To deprive is to withhold
permanently, or for a time which substantially devalues
the property taken, or with a purpose to restore the
property only upon compensation, or to dispose of the
property such that it is unlikely to be recovered. N.J.S.A.
2C:20-1a. To obtain is to induce a transfer or purported
transfer of a legal interest in property, or secure
performance of a service. N.J.S.A. 2C:20-1f. Possession
of stolen property may be gathered from the words or
conduct of the suspect under the circumstances. State v.
McCoy, 116 N.J. 293, 300-03 (1989).Thefts should be indicted separately, because
whether a theft is within a single scheme or course of
conduct is an element. State v. Childs, 242 N.J. Super.
121, 131-32 (App. Div.), certif. denied, 127 N.J. 321
(1990). The court must instruct the jury to find which
counts are part of one scheme or course of conduct and
which are not. Id.
The amount of theft is an element of the offense
which must be set forth in the indictment, but where a
defendant does not challenge the sufficiency of the
indictment below, a conviction that is supported by
evidence at trial will be upheld. State v. D’Amato, 218
N.J. Super. 595 (App. Div. 1987), certif. den., 110 N.J.
170 (1988). The trial court must instruct the jury
regarding the amount of theft and the trier of fact must