The Supreme Court recently reiterated the distinction between crimes that can be classified “as either a discrete act or a continuing offense.” State v. Jones, (App. Div. 2016). A discrete act’ is one that occurs at a single point in time. A continuing offense involves conduct spanning an extended period of time and generates harm that continues uninterrupted until the course of conduct ceases. The New Jersey Code of Criminal Justice includes a presumption against continuous offenses, however, that presumption is overcome if the statute defining the offense includes conduct which persists over time. If the scheme that constitutes the offense is one which ‘plays out over the course of many days, weeks, months, or even years,’ then it is a course of conduct.”
The conduct at issue occurred during the period May 2, 2016, to November 15, 2016, a period of 198 days. These 224 crossings of the bridge, without paying the toll, occurred at a rate of more than once per day. This conduct persisted over an extended period of time, essentially on a daily basis. These facts suffice to establish a continuing course of conduct and trigger the provision in N.J.S.A. 2C:20-2(b) which allows the amount of the thefts to be aggregated for the purpose of determining the degree of the crime.
An interesting issue is whether the facts would weigh against aggregation in a case in which authorities recognized a continuing course of thefts was occurring, but waited to bring charges until aggregation would allow for a higher degree of crime. Fundamental fairness would seem to weigh against aggregation for the same reasons that entrapment can be used as a defense when law enforcement encourages a crime to occur which would have otherwise not occurred.