State v. Lige, A-6211-09T2; Appellate Division; opinion by Ashrafi, J.A.D.; decided and approved for publication February 22, 2013. Before Judges Ashrafi, Hayden and Lisa. On appeal from the Law Division, Middlesex County, Indictment No. 08-10-1729. DDS No. 14-2-9095 [17 pp.]

When defendant Bruce Lige was tried on the theft charges from which he now appeals, he already had a record of criminal convictions. He had been convicted and sentenced in the Superior Court about 18 times for thefts and other offenses, and in the municipal courts about nine additional times for disorderly persons and lesser offenses. In this matter, defendant stood on an indictment charging two third-degree theft offenses — receiving a stolen tow truck and receiving a stolen motor vehicle license plate.

In a prosecution for receiving stolen property, N.J.S.A. 2C:20-7(b) permits the jury to infer that defendant knew the property was stolen if he was "found in possession or control of two or more items of property stolen on two or more separate occasions; or … [h]as received stolen property in another transaction within the year preceding the transaction charged."

Before the trial began, the prosecution provided notice that it intended to offer in evidence testimony and documentary evidence to prove six instances of defendant being in possession of stolen goods other than the tow truck and license plate seized from his backyard on July 28, 2006. The trial court conducted a pretrial evidentiary hearing to determine whether the prosecution could produce clear and convincing evidence of these other theft offenses and whether they were admissible under N.J.S.A. 2C:20-7(b). The court ruled that the proffered evidence would be admissible. At trial, the prosecution presented testimony from 15 witnesses to prove the other instances of defendant’s possession of stolen items, besides his possession of the tow truck and the license plate.

Defense witnesses testified and defense counsel argued that defendant did not know the tow truck and license plate were stolen. The prosecutor’s closing argument emphasized the prior instances of defendant’s possession of stolen items. The court’s final instructions to the jury referred to the specific dates and the stolen items as evidence the jury could use to determine whether defendant had the requisite guilty knowledge. The jury convicted defendant of both charges.

Held: The trial court misapplied N.J.S.A. 2C:20-7(b) in admitting extensive evidence of four prior theft offenses that defendant had committed more than a year earlier and one after the date of the current charges. That "other crimes" evidence was not admissible under the statute and required analysis under N.J.R.E. 404(b). This error requires reversal and a new trial.

In this case, the trial court incorrectly applied N.J.S.A. 2C:20-7(b) to transactions outside the one-year time limit covered by the statute. The court permitted the jury to hear extensive testimony about defendant’s theft offenses outside the time limitation without determining whether that evidence was admissible under N.J.R.E. 404(b), the evidence rule that applies generally to "other crimes evidence." The jury received incorrect instructions on how to use the detailed testimony and documentary evidence pertaining to four other theft offenses committed by defendant several years earlier and one committed several months after the offenses charged in the indictment. The appellate panel finds that defendant’s trial was tainted by improper use of the statutory inference of guilty knowledge.

Subsection (2) of N.J.S.A. 2C:20-7(b) applies to evidence of "another transaction" in which defendant "received stolen property." All of the other instances when defendant was in possession of stolen items involved "another transaction" by which defendant had received stolen property. Subsection (2) is expressly limited to other transactions that occurred "within the year preceding the transaction charged." The only evidence that fit the one-year limitation was testimony about the stolen Ford pickup truck found at defendant’s residence on June 26, 2006. The other instances all occurred several years earlier or several months after July 28, 2006.

The state contends that the other instances were admissible under subsection (1) of the statute, which permits inference of defendant’s guilty knowledge if he "[i]s found in possession or control of two or more items of property stolen on two or more separate occasions." The state argues that subsection (1) has no time limitation and that its plain language applies to the other instances when defendant was in possession of stolen items. That reading of subsection (1), however, renders subsection (2) superfluous because the time limitation the Legislature placed in subsection (2) would be meaningless.

By referring to "two or more items of property stolen on two or more separate occasions," subsection (1) implies that the property that is the subject of the charge for which defendant currently stands accused is at least one of those items. Defendant’s simultaneous possession of items stolen on different occasions is probative of his guilty knowledge that property that is the subject of the current charge was stolen. The appellate panel finds that subsection (1) applies to possession of items stolen on a separate occasion but discovered in conjunction with a stolen item that is the subject of the charges currently being prosecuted.

N.J.S.A. 2C:20-7(b) did not permit admission of instances when defendant was in possession of stolen items several years before the date of the transaction charged, or after that date. The legal error so permeated the trial that the verdict cannot stand. The convictions are reversed and the matter is remanded for retrial.

For appellant — John Douard, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender). For respondent — Ashlea D. Thomas, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General).