Fred Sisto | Criminal Attorney | Ocean and Monmouth County

Call Us Today
732-898-3232

  • Home
  • Criminal Defense Services
    ▼
    • Drug Crimes
      ▼
      • Drug Manufacturing
      • Intent to Distribute Narcotics
      • Prescription Drug Crimes
      • Leader of Narcotics Trafficking Network
    • Weapons Charges
      ▼
      • Prohibited Weapons and Devices
      • Manufacture, Transport, etc. of Weapons
      • Illegal Possession of a Gun
      • Possession of Weapons for Unlawful Purposes
    • Expungements
    • Theft Attorney
    • Violent Crimes
      ▼
      • Robbery/Burglary
      • Manslaughter
      • Extortion
      • Assault
      • Sexual Offenses
    • Arson
    • DUI / DWI
      ▼
      • Alcohol DUI
      • Drug DUI
      • Refusing a Breath Test
    • Driving with A Suspended License
    • Property Forfeiture
    • Anti-Drug Profiteering
    • Juvenile Delinquency
  • Español / Spanish Speaking Attorney
  • About
    ▼
    • Testimonials
    • Defending Cases In
      ▼
      • Monmouth County
      • Ocean County
  • Blog
  • Contact
    ▼
    • Receive a Call From Fred
  • DUI Checkpoint Alerts
  • Results
  • Payment Options
  • Home
  • Criminal Defense Services
    • Drug Crimes
      • Drug Manufacturing
      • Intent to Distribute Narcotics
      • Prescription Drug Crimes
      • Leader of Narcotics Trafficking Network
    • Weapons Charges
      • Prohibited Weapons and Devices
      • Manufacture, Transport, etc. of Weapons
      • Illegal Possession of a Gun
      • Possession of Weapons for Unlawful Purposes
    • Expungements
    • Theft Attorney
    • Violent Crimes
      • Robbery/Burglary
      • Manslaughter
      • Extortion
      • Assault
      • Sexual Offenses
    • Arson
    • DUI / DWI
      • Alcohol DUI
      • Drug DUI
      • Refusing a Breath Test
    • Driving with A Suspended License
    • Property Forfeiture
    • Anti-Drug Profiteering
    • Juvenile Delinquency
  • Español / Spanish Speaking Attorney
  • About
    • Testimonials
    • Defending Cases In
      • Monmouth County
      • Ocean County
  • Blog
  • Contact
    • Receive a Call From Fred
  • DUI Checkpoint Alerts
  • Results
  • Payment Options
Home >> Theft Consolidation and Factual Basis (Part 3)

July 24, 2018 by Fred Sisto

Theft Consolidation and Factual Basis (Part 3)

The commentary to the Model Penal Code, after which the Criminal Code was modeled, discussed the consolidation concept as follows: Nevertheless, consolidation cannot eliminate the necessity for careful drafting, nor can it avoid the necessity for a properly specific delineation of the various types of property deprivations that should be punished by the criminal law.

The purpose of consolidation, therefore, is not to avoid the need to confront substantive difficulties in the definition of theft offenses. The appropriate objective is to avoid procedural problems. Even a consolidated offense will retain distinctions among methods of acquisition and appropriation. The real problem arises from a defendant’s claim that he did not misappropriate the property by the means alleged but in fact misappropriated the property by some other means and from the combination of such a claim with the procedural rule that a defendant who is charged with one offense cannot be convicted by proving another. Model Penal Code § 223.1 cmt. 2(b) at 132-33 (Am. Law Inst.) (rev. cmts. 1980) (emphasis added).

The Court spoke of a trial setting when it held that “attempting to defeat one charge by arguing that a defendant committed a different criminal offense” is “the very vice at which the ‘consolidation’ statute is directed.” In conclusion, the Court emphasized “the adversary system cannot be permitted to deteriorate into a mere game in which defendant brazenly manifests his contempt for the system by openly admitting his guilt of an offense and then seeking exoneration on the basis of some arcane notion of pleading.”

In addition to the analysis set forth in Talley, the commentary to the Model Penal Code illustrates instances where the consolidation statute is appropriate: Examples come readily to mind where an unwary prosecutor might stumble in distinguishing larceny, false pretenses, extortion, and embezzlement. An offender who is prosecuted for fraud might escape by proving that the victim did not believe the representations made to him but was merely frightened by them. Similarly, one who gives a bad check as a down payment on an automobile which is thereupon delivered to him on conditional sale may defeat criminal prosecution for obtaining by false pretenses by arguing that the vendor reserved title and that the vendee could therefore only be guilty of larceny, the offense against possession.

The Court’s analysis is sound, but it overlooks the dim view that most jurors would take of a defendant whose defense is “I committed a different crime.” Most juries would rather return a guilty verdict for the wrong offense than acquit under the circumstances.

Filed Under: Blog, Criminal Law, Drug Crime, Monmouth County, New Jersey, Ocean County

Testimonials

Fred is a stickler for detail and communicates with clients very, very well. He is smart and astute. I would recommend him unconditionally.

Tom O   

I would highly recommend Mr. Sisto. He is very insightful and proficient, yet still down to Earth. Fred is great at communicating and breaking down the facts. But most importantly, he excels at getting results.

Bill K   

Thanks to Fred I have no criminal record whatsoever.

Luke A   

Great!!! , got my case handled in the exact manner that I was told and would recommend to everyone else in need of legal representation.

Raumelis R   
See More Testimonials

Recent Posts

  • Plea Agreements and New Charges (Part 2)
  • Plea Agreements and New Charges (Part 1)
  • Youth and Withholding Imprisonment (Part 2)
  • Youth and Withholding Imprisonment (Part 1)
  • Marijuana and Diversionary Programs (Part 4)
  • Marijuana and Diversionary Programs (Part 3)
  • Marijuana and Diversionary Programs (Part 2)
  • Marijuana and Diversionary Programs (Part 1)

Recent Speaking Engagement

Site Disclaimer

Attorney Referral Fees

Frederick P Sisto has earned Lawyer Legion's recognition for Community Leadership
 
Top Criminal Defense Attorney in Brick

Law Office of Frederick P. Sisto

Point Pleasant Office*:
302 Hawthorne Ave, Suite 1
Point Pleasant Beach, NJ 08742

Brick Township Office*:
223 Drum Point Road, Suite 1
Brick Township, NJ 08723

Sea Girt Office*:
2150 NJ-35,
Suite 225
Sea Girt, NJ 08750

Phone: 732-898-3232
Fax: 201-508-3393
*Office visits by appointment only.

Representing clients throughout all court jurisdictions of New Jersey.

WITH THE EXCEPTION OF THE CRIMINAL TRIAL ATTORNEY CERTIFICATION, NO ASPECT OF THIS ADVERTISEMENT HAS BEEN APPROVED BY THE SUPREME COURT OF NEW JERSEY

en English
en Englishes Spanish