STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS BATIZ,
Defendant-Appellant.
Telephonically argued September 2, 2011
Decided September 16, 2011
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Municipal Appeal No. 26-10.
DOCKET NO. A-2070-10T3
Marianne V. Rogers, Assistant Prosecutor,
argued the cause for respondent (Jennifer
Webb-McRae, Cumberland County Prosecutor,
attorney; Ms. Rogers, of counsel and on the
brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
PER CURIAM
Defendant Luis Batiz appeals a disorderly persons theft
conviction, N.J.S.A. 2C:20-3(a), after a trial de novo on the
record in the Law Division pursuant to Rule 3:23. For the
reasons that follow, we reverse.
2 A-2070-10T3
In addition to the theft conviction, defendant was
convicted in the municipal court of the petty disorderly persons
offense of disorderly conduct, N.J.S.A. 2C:33-2(a), the
disorderly persons offenses of obstruction, N.J.S.A. 2C:29-1(a),
and hindering apprehension, N.J.S.A. 2C:29-3(a). After the
November 19, 2010 trial de novo, the Law Division judge
determined that the statutory elements for the offenses other
than theft were not established and found defendant guilty only
of theft.
The facts can be briefly summarized. At the municipal
court trial, the State presented one witness, State Police
Trooper DeTullio.1 DeTullio testified that on February 23, 2010,
he was dispatched to a house in Fairfield Township. Upon
arrival, he saw a moving van with the name "Pack Rat Moving
Company" (Pack Rat) in defendant's driveway to the right of his
home. A Honda CRV owned by defendant's wife blocked the van's
access to the street. A second Pack Rat vehicle was parked on
the street in front of the house.
Defendant explained to DeTullio that the moving company was
attempting to remove its storage pod, filled with his personal
belongings, from his driveway; as a result, he in turn had
hidden the "key tool" or jack which secured the pod to the
1 Trooper DeTullio did not place his first name on the record.
3 A-2070-10T3
moving van.2 At DeTullio's urging, defendant produced the item,
defendant's wife moved her CRV, and both Pack Rat vehicles left
the residence, pod in tow.
Defendant contends that the State failed to prove theft
beyond a reasonable doubt. He also asserts that his claim of
right established an absolute defense to the charge. See
N.J.S.A. 2C:20-2(c)(2).
The State's position that defendant's acknowledgment that
he removed the key in order to prevent the removal of the pod,
when joined with the circumstantial evidence, was sufficient
proof of theft. The State also asserts defendant could not
raise the claim of right argument since he did not own the key
and, therefore, his removal of the key constituted theft. At
oral argument, the State advanced the further theory that Pack
Rat's ownership of the pod barred defendant from successfully
asserting a claim of right defense based on his ownership of the
pod's contents.
We review the record to determine if the conclusions
reached in the Law Division were based on sufficient credible
evidence. State v. Johnson, 42 N.J. 146, 162 (1964). In the
process, we accord substantial deference to the trial court's
2 The record contains no information regarding the dispute
between defendant and Pack Rat.
4 A-2070-10T3
credibility determinations. State v. Barone, 147 N.J. 599, 615
(1997). We do not give particular deference, however, to the
trial court's interpretation of the law. Manalapan Realty, L.P.
v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
Theft is defined as follows: "[a] person is guilty of theft
if he unlawfully takes, or exercises unlawful control over,
movable property of another with purpose to deprive him
thereof." N.J.S.A. 2C:20-3. Deprive is defined as "(1) to
withhold or cause to be withheld property of another permanently
or for so extended a period as to appropriate a substantial
portion of its economic value . . . or (2) [to] dispose or cause
disposal of the property so as to make it unlikely that the
owner will recover it." N.J.S.A. 2C:20-1(a).
If for the sake of our discussion we assume the State
proved the item did not belong to defendant, the State
nonetheless did not prove that defendant's removal of the key
was intended to be permanent, for an extended period of time, or
even intended to make it unlikely that the moving company would
recover it. Rather, the State proved only that defendant's
conduct was intended to prevent the towing of the pod and his
belongings from his property until such time as his dispute with
the moving company was resolved. In other words, nothing
DeTullio said in his brief testimony established a purpose to
5 A-2070-10T3
deprive the rightful owner of the object, within the meaning of
the statute.
Moreover, the State's position that the defense of claim of
right is restricted solely to property in which a defendant has
an ownership interest is not borne out in the case law. See
State v. Taplin, 230 N.J. Super. 95, 96-97, 100 (App. Div. 1988)
(defendant entitled to present a claim of right defense, and
court must instruct the jury accordingly, where defendant helped
a friend remove a television from the friend's home, assuming
the friend had the right to remove it).
The statute permits the defense to be asserted where a
person "[a]cted under an honest claim of right to the property
or service involved or that he had a right to acquire or dispose
of it as he did[.]" N.J.S.A. 2C:20-2(c)(2). In this case,
defendant acted on the belief that he had the right to prevent
removal of the pod from his own property, because his personal
belongings were inside. Although the trooper convinced
defendant to return the key, it is undisputed that defendant
took the object, which lacks any inherent value, solely to
protect his own personalty. Thus we disagree with the State's
further contention that the defense was inapplicable because the
pod belonged to Pack Rat even though the contents belonged to
defendant. Pack Rat's ownership of the pod or the key does not
6 A-2070-10T3
prevent defendant from successfully asserting the defense
because without attempting to control the pod he simply could
not protect his own property.
We are mindful of "the fundamental premise that criminal
laws are to be strictly construed." State v. Hodde, 181 N.J.
375, 379 (2004). The State did not prove theft or present
evidence which defeated the claim of right defense. Thus,
defendant should not have been found guilty.
Reversed and remanded.
