Theft Consolidation and Factual Basis (Part 2)

The pertinent theft consolidation subsection of the statute relied upon by the State provides: Conduct denominated theft or computer criminal activity in this chapter constitutes a single offense, but each episode or transaction may be the subject of a separate prosecution and conviction. A charge of theft or computer criminal activity may be supported by evidence that it was committed in any manner that would be theft or computer criminal activity under this chapter, notwithstanding the specification of a different manner in the indictment or accusation, subject only to the power of the court to ensure fair trial by granting a bill of particulars, discovery, a continuance, or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

Although the statutory language does not, as defendant argues, explicitly limit consolidation to trials, some of it clearly references trial settings. The phrase, “a charge of theft may be supported by evidence,” implicates a trial; evidence is presented only at a trial while pleas are supported by a defendant’s factual basis. Likewise, “continuance,” “conduct of the defense,” and “prejudiced by lack of fair notice or by surprise” pertain to trial proceedings, not to the more controlled plea setting. And the context of “to ensure fair trial” is obvious.

A review of secondary sources – our Supreme Court’s historical review of the original New Jersey consolidation statute and the commentary to the Model Penal Code theft consolidation provision – also supports our view that the consolidation statute applies only to trial settings. The Court, in State v. Talley (1983), analyzed the history of the original version of N.J.S.A. 2C:20-2(a): As stated in the commentary to the Code, “the common unifying conception in all these offenses is the ‘involuntary transfer of property’; the actor appropriates property of the victim without his consent or with consent obtained by fraud or coercion.” II Final Report of the New Jersey Criminal Law Revision Commission, commentary to N.J.S.A. 2C:20-2, at 291 (1971).

Here, the Court seems to reverse course in its analysis. It begins by holding that “the statutory language does not, as defendant argues, explicitly limit consolidation to trials”, and ends by referencing its “view that the consolidation statute applies only to trial settings.”