EZ Pass and Theft of Services (Part 2)

The Law Division judge continued in relevant part: Defendant’s reliance upon Kocen is misplaced. Here, there is a physical act of deception by defendant. By repeatedly driving through the EZ-Pass Only lane without a valid transponder, defendant was committing an act of deception, unlike Kocen, where the defendant was never billed for the use of natural gas.

Counsel’s argument that the theft of services statute does not fall within the grading provisions of N.J.S.A. 2C:20-2(b) is not supported by the statute or case law. The grading portion of the theft statute is a general provision which applies to all categories of theft. N.J.S.A. 2C:20-2(b)(2) makes theft of more than $500 but less than $75,000 a third-degree crime. Defendant made 220 crossings of the Ben Franklin Bridge and four crossings of the Walt Whitman Bridge from New Jersey to Pennsylvania without paying the five-dollar toll, making each individual violation amount of only five dollars.

Pursuant to the statute, “amounts involved in thefts or computer criminal activities committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense.” The New Jersey Supreme Court has held that theft offenses may be aggregated, including theft by deception. State v. Diorio (2014). When discussing aggregating theft by deception for the purposes of the statute of limitations, the Court in Diorio explained that our “courts have found a plain appearance that the Legislature intended to prohibit a continuing course of conduct in situations involving a common scheme of ongoing conduct and where, by the terms of the statute prohibiting the conduct, the amounts involved can be aggregated to form a single offense.”

If theft of services offenses could not be aggregated, the defendant would be charged with 220 acts of disorderly persons theft by deception. He would, on paper be facing up to six months in jail on each charge. As a practical matter and in light of our case law regarding consecutive sentences, he would not be facing more than three consecutive sentences or one- and one-half years in prison. With an aggregated third-degree charge, he faces a maximum of five years in prison.