Under N.J.S.A. 2C:20-7(a), in a theft by receiving stolen property prosecution, one of the elements the State must prove is that the defendant received movable property of another knowing it had been stolen or believing that it was probably stolen.
Is it also necessary for the State to prove beyond a reasonable doubt that the subject property was, in fact, actually stolen property?
This issue was decided by the New Jersey Supreme Court this morning. The Justices ruled 6 to 0 that the State must prove an additional element in 2C:20-7 cases that the property in question was actually stolen.
Download a copy of State v. Hodde
copyright 2004 – Muni-mail – All Rights Reserved
Earlier this morning, the Administrative Director of the Courts released Directive 10-04. Under the mandate of the Directive, judges of the municipal court must now review a certified abstract of a defendant’s driving history prior to the imposition of sentence for a motor vehicle offense that carries enhanced punishment for subsequent violations. The Directive also details the steps that should be taken when a defendant’s driving history comes from another jurisdiction or when the court has improperly sentenced due to incorrect information.
This Directive should be read in conjunction with the Legislature’s mandate (enacted as Assembly bill A-1630) that municipal prosecutors review and furnish to the sentencing court a certified copy of a defendant’s driving history in all dwi and refusal cases. The prosecutor’s law goes into effect on October 1st. (For complete text, see www.muni-mail.com archive entry for 8/3/04.)
The complete text of Directive 10-04 follows:
NOTICE TO THE BAR
Directive #10-04 – Requirement to Review a Defendant’s “Certified Driver Abstract” Prior to Sentencing for Driving While Intoxicated and Other Motor Vehicle Offenses with Graduated Penalties
Questions or comments may be directed to 609-984-8241
TO: Municipal Court Judges
FROM: Richard J. Williams
SUBJ: Requirement to Review a Defendant’s “Certified Driver Abstract” Prior to Sentencing for Driving While Intoxicated And Other Motor Vehicle Offenses with Graduated Penalties
DATE: August 31, 2004
At the request of the Judicial Council, in consultation with the Conference of Presiding Judges-Municipal Courts, this Directive is a reminder that all judges must obtain and review a current “Certified Driver Abstract” from the Motor Vehicle Commission (“MVC”) before sentencing a defendant for motor vehicle offenses that carry increased penalties for subsequent offenses. It is inappropriate for the sentencing judge to rely on the representations of the prosecutor, defense counsel, or defendant as to the defendant’s driving record. The offenses include, but are not limited to:
(1) driving while intoxicated, N.J.S.A. 39:4-50;
(2) refusal to submit to chemical test, N.J.S.A. 39:4-50.4a;
(3) driving while suspended, N.J.S.A. 39:3-40;
(4) operating a commercial vehicle while intoxicated, N.J.S.A. 39:3-10.13;
(5) refusal to submit to chemical test while operating a commercial vehicle, N.J.S.A. 39:3-10.24;
(6) driving without insurance, N.J.S.A. 39:6B-2;
(7) leaving the scene of an accident, N.J.S.A. 39:4-129; and
(8) boating while intoxicated, N.J.S.A. 12:7-46.
In order to impose a proper sentence for any of these offenses, the judge must know whether the defendant has previously violated that statute. Accordingly, it is the prosecutor’s responsibility to provide the court with the Certified Driver Abstract. If the prosecutor fails to do so, however, the court should proceed with sentencing only if court staff has obtained a Certified Driver Abstract on-line from the MVC’s database.
In the case of an out-of-state driver, the judge, before sentencing, should examine both the defendant’s New Jersey Certified Driver Abstract and the defendant’s driving record for the licensing state. The judge should request that the prosecutor obtain and provide the court with the defendant’s driving record from the licensing state as soon as possible. If, however, the prosecutor has not provided the out-of-state driving record by the scheduled court date, the judge should proceed with sentencing the defendant without the out-of-state driving record. In such instances, however, before imposing sentence, the judge should on the record require the prosecutor to provide the out-of-state driving record when it is obtained. When a defendant is sentenced in the absence of the out-of-state driving record and the prosecutor later provides the court with sufficient proof that the defendant should have been sentenced to an enhanced penalty by virtue of an out-of-state conviction, the court shall require the defendant to appear for re-sentencing.
Further, when imposing sentence for a motor vehicle offense with increased penalties for subsequent offenses, the judge must explicitly state on the record that he or she has personally examined the Certified Driver Abstract and must place on the record the date of the Certified Driver Abstract that was reviewed and the number of times defendant has been previously convicted for that offense. SeeR. 1:7-4(a), R. 3:21-4(g), and R. 7:9-1(b).
If you have any questions concerning this Directive, please contact the Vicinage Municipal Court Presiding Judge or Municipal Division Manager for your vicinage.