# State v. Rama

> New Jersey Superior Court Appellate Division · March 4, 1997 · 298 N.J. Super. 339

URL: https://www.frixlaw.com/law-library/cases/7321598

## Case

- **Full name:** STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT v. JOHN RAMA
- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** March 4, 1997
- **Citations:** 298 N.J. Super. 339; 689 A.2d 776; 1997 N.J. Super. LEXIS 97
- **Precedential status:** Published
- **Opinion:** Dissent by Dreier
- **Judges:** Annunzio, Dreier
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7321598

## How later opinions describe it (automated extraction)

- concluding that phrase “shall be subject to" is ambiguous because “[a]lthough ‘shall’ is mandatory, ‘subject to’ is less clearly so”

## Opinion text

DREIER, P.J.A.D.
(Dissenting).
I must respectfully dissent from the conclusion drawn by my colleagues in this case.
Defendant has appealed from the sentence imposed after his guilty plea to receiving stolen property, a 1994 Lexus automobile, N.J.S.A. 2C:20-7. Defendant stated that when he drove the automobile to New York for a friend for the purpose of its sale, he initially had not known the car was stolen, but assumed that it was when he saw a broken window and found title documents indicating that the owner was other than the friend who had given the car to him. The judge sentenced defendant to a three-year probationary term conditioned upon fifty hours of community service as well as an additional penalty he determined was mandatory under N.J.S.A. 2C:20-2.1, namely, a one year’s loss of driver’s license and a $500 fíne. The judge clearly stated that he would not have imposed the license suspension and fine had he not determined that these penalties were mandatory under N.J.S.A. 2C:20-2.1.
The issue of whether the additional statutory penalties were mandatory was specifically left open in State in re V.M., 279 N.J.Super. 535, 538 , 653 A.2d 612 (App.Div.1995). There, the court noted that the statutory language “may well be an authorization rather than a mandate to impose specific penalties.” The statute provides:
a. In addition to any other disposition authorized by law, a person convicted under the provisions of this chapter of theft or unlawful taking of a motor vehicle skall be subject:
(1) For the first offense, to a penalty of $500.00 and to the suspension or postponement of the person’s license to operate a motor vehicle over the highways of this State for a period of one year.
[N.J.S.A. 2C:20-2.1 (Emphasis added).].
Additional penalties are also stated for a second, third or subsequent offense, and a detailed procedure is set forth in subsection b of the statute for the suspension of the offender’s driver’s license. In the case before us, defendant is a first offender and is em *347 ployed as a United Parcel Service driver. The suspension of his license will mean the loss of employment.
The issue boils down to the interpretation of the words “shall be subject ... to.” The use of the word “shall” implies that what follows is mandatory; the use of the words “subject to” indicates discretion on the part of the sentencing judge. The Legislature did not say “may be subject to;” nor did it state that the penalty “shall be imposed” or that defendant “shall be subjected to” the sentence. The Legislature obviously has given the courts the power to impose a harsher penalty for the theft of motor vehicles, but the issue is whether it intended to make this penalty mandatory, irrespective of the circumstances.
My colleagues have analyzed the four statutes approved on April 2, 1991 dealing with automobile thefts, L. 1991, c. 80-83, 1 now N.J.S.A. 2C:20-16, -17, -18 and -20.2.1. I glean from these statutes a different intention from that interpreted by the majority. When the Legislature intended to make the penalty mandatory, it expressed so in definite terms. In Chapter 80, N.J.S.A. 2C:20-16, when the Legislature mandated the forfeiture of a driver’s license, it stated that a person who maintains a “chop shop,” notwithstanding any other provision of the law to the contrary, “shall forthwith forfeit his right to operate a motor vehicle ... for a period to be fixed by the court at not less than three nor more than five years.” N.J.S.A. 2C:20-16(b) (emphasis added). In the case before us, however, Chapter 83, N.J.S.A. 2C:20-2.1 provides that the convicted party “shall be subject ... to the suspension or postponement of the person’s license ... for a period of one year.” The difference in the language is striking.
The other two statutes enacted as part of this legislative package raise the degree of crime for an adult using a minor to commit an automobile theft to that of the second-degree. The penalty, however, is left to the discretion of the court under the sentencing provisions of the Code of Criminal Justice. The Legislature *348 further provided that this crime should not merge with a conviction for theft of the automobile. The language, however, was not that the crime would be subject to not being merged, but rather that the crime “shall not merge with a conviction for theft of an automobile.” The Legislature therefore again indicates that where it intends a penalty to be mandatory, it will say so.
On the other hand, in Chapter 82, N.J.S.A. 2C:20-18, establishing a new second-degree crime of being “a leader of an auto theft trafficking network,” the Legislature did not impose a mandatory fine, but rather stated that “the court may impose a fine not to exceed $250,000.00 or five times the retail value of the automobile seized at the time of the arrest, whichever is greater.” Again, the Legislature directed the nonmerger of the conviction using the “shall not merge” language it did in Chapter 81. However, the penalty for the offense is left to the discretion of the judge, within the guidelines of the Code of Criminal Justice. The Committee Statement attached to the bill notes that the original bill had provided a term of fifteen years imprisonment with a seven-year parole disqualifier. This mandatory sentence, however, was deleted.
Thus the Legislature imposed a mandatory license forfeiture for the operator of a “chop shop,” no mandatory sentence for the use of a juvenile in the theft of an automobile, and no mandatory sentence for a leader of an auto theft trafficking network. But, according to the majority, the statute imposes a mandatory penalty and loss of driving privileges for theft of an automobile, even though the Legislature has employed equivocal language. 2
*349 Since this is a criminal statute, it must be narrowly construed. State v. Valentin, 105 N.J. 14, 17 , 519 A.2d 322 (1987). If defendant “shall be subject” to the penalty, it could reasonably be interpreted as meaning that the sentencing court must consider whether this penalty should be imposed in addition to the fine, imprisonment or both already provided by law, but that the additional penalty is not mandatory. The defendant is merely exposed to such a penalty. If the word could reasonably be so interpreted and is part of a criminal statute, it should not be given a harsher construction.
I have no question that receiving stolen property is a “theft” which triggers the sentencing provisions of N.J.S.A. 2C:20-2.1, but I would read that statute as making defendant only subject (ie., exposed) to the penalties, not that the penalties must mandatorily be imposed. Given the sentencing judge’s definite statements that he would not have imposed these penalties had he not considered them mandatory, I would remand this matter to him for resentencing.
C. 83 was amended by L. 1993, c. 219 to add the "unlawful taking" language.
I also note some overlapping of the provfsions of this Act with the sentencing provisions of N.J.S.A. 2C:43-2c. Although such duplication is not unusual in the law, the statute here under review establishes definite monetary penalties of between $500 and $1000, and specific terms of suspension of from one to ten years, depending upon the number of prior offenses, if the court determines to impose them. The general statute permits up to a two year suspension, without monetary penalties. The general statute was thus modified, not duplicated, with respect to the auto theft crimes.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7321598. Public record. Not legal advice.