                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-2099-14T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,                    APPROVED FOR PUBLICATION

                                                           March 1, 2016
    v.
                                                         APPELLATE DIVISION
ROBERT J. KOSCH, JR.,

          Defendant-Appellant.
__________________________________________________

           Submitted December 8, 2015 – Decided March 1, 2016

           Before Judges Fisher, Rothstadt and Currier.

           On appeal from the Superior Court of New
           Jersey,   Law   Division,  Sussex County,
           Indictment No. 13-05-0188.

           Taylor R. Ward, attorney for appellant.

           Fredric M. Knapp, Morris County Prosecutor,
           attorney   for  respondent   (Paula  Jordao,
           Assistant Prosecutor, on the brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    At    the     conclusion    of   a   ten-day     trial,     defendant      was

convicted of theft, forgery, and other offenses charged in two

separate indictments.       In this appeal, defendant argues, among

other   things,    that   the   evidence   did     not    support    the   jury's

finding that he committed theft of immovable property, N.J.S.A.
2C:20-3(b).       Although      there     was         evidence   in    the    record    to

demonstrate       an    unlawful     taking       of    an   interest    in    immovable

property, we nevertheless vacate those convictions because the

jury was mistakenly instructed as to the nature of the interest

allegedly taken.

                                             I

       To put the issues in perspective, we briefly summarize the

evidence concerning defendant's involvement with three separate

properties: 8 Tanglewood Drive, Highland Lakes; 13 Tanglewood

Drive,       Highland       Lakes;     and       61     Greenhill     Road,     Hamburg.

Defendant was acquitted of offenses involving a fourth property

also    located        in   Highland     Lakes;        consequently,     we    need    not

discuss the evidence relating to those charges.

                                             A

       The     jury    heard   evidence      from       which    it   could   find     that

Margaret Green (a fictitious name1) purchased 8 Tanglewood on May

15,    2008,    for     $367,000;    a   mortgage        encumbered     the    property.

Facing foreclosure proceedings in 2010, Green moved from the

premises and attempted to refinance.

       On August 16, 2011, Green was advised by a neighbor that

someone was living in her home.                   Investigation revealed that an


1
  The names of the property owners and renters in this opinion
are fictitious.



                                             2                                  A-2099-14T3
individual named Sam Rose was living in the residence and the

locks had been changed.

       Green    provided      police    with    proof   of   ownership.     It    was

learned that the leasing of the property to Rose was facilitated

by    an   unrecorded      deed   which     suggested   Green   transferred       the

property to John Houle — an alias used by defendant — on June

27,    2011,   for    $100.       The   purported   grantor's    signature        was

notarized,2 and the deed stated it was prepared by defendant.

Green denied executing this document.

       When asked for documentation concerning his right to lease

the premises, Rose provided a fax of the Green-Houle deed, a

written statement from Green, and a copy of an agreement which

suggested Houle (defendant's alias) authorized defendant to act

as property manager for 8 Tanglewood. The address for Houle

contained      in    the   deed   was   a   non-existent     address   in    Wayne;

defendant also used that address to apply for electric service

at 8 Tanglewood.

       Green sold the property in 2013.




2
   The notary testified he met defendant in 2006, when he
performed work on defendant's home. He acknowledged notarizing
documents for defendant in the past but denied notarizing the
deed or anything for defendant in 2011.



                                            3                               A-2099-14T3
                                                 B

       The machinations regarding 13 Tanglewood Drive are somewhat

different.

       Janet       Singer      purchased         the       lot   at       this     address    for

approximately $50,000 and thereafter built a modular home. On

July   8,    2011,       defendant        left       a   letter      in     Singer's    mailbox

expressing         an    interest       in    purchasing         the      home.       Following

negotiations, defendant agreed to buy the home for $185,000.                                  He

provided Singer with an initial deposit of $1000, and she agreed

to   allow     defendant       to   install          utilities        for    the    purpose   of

obtaining      a    certificate         of    occupancy.         Defendant         provided    an

additional $7500 in cash toward the purchase of the home.

       In October 2011, Singer's suspicions were raised when she

received a call from the electric company seeking approval to

remove her name from the property's service account. She then

learned      a      family        had        moved       into     the        premises.       Upon

investigation,           Singer     was      shown       a    deed     by    which     she    was

purported      to       have   transferred           the     property       to    defendant    on

August 18, 2011, for $100.                   She denied execution of this and all

other related documents.

       The State also presented evidence that the property was

leased to Marie Arthur. When applying for financial assistance

from the Department of Community Affairs, Arthur provided a copy




                                                 4                                     A-2099-14T3
of   a    lease,    which    she    and     defendant      had    signed,        obligating

Arthur to pay defendant $1415 per month.                      A copy of the deed was

also provided, but without a second page — the page that would

have contained the grantor's signature.

         An attorney retained by defendant to represent him with

regard to the transfer of 13 Tanglewood testified he was advised

there was a signed deed but he claimed he never saw it and was

told     by   Singer's     attorney    that      she   never      signed     a    deed.   No

closing ever occurred.

         Singer later sold the property to another for $215,000.

                                             C

         Martha Smith purchased a residence located at 61 Greenhill

Road in Hamburg in 2006 for $243,800.                     The property was burdened

by a mortgage.           Smith encountered financial difficulties, and a

tax lien was recorded.             In 2010, defendant, who was aware of the

lien, advised Smith of his interest in purchasing the property.

When they met, defendant explained he had been very successful

in buying properties in distress. Smith authorized defendant to

negotiate a settlement with the mortgage holder, and she agreed

to   transfer      the    property    to     him    for    the    settlement        amount.

Defendant's        attorney    at     the    time      sent      Smith   a       letter    of

undertaking, which she signed. And Smith signed a deed to be




                                             5                                     A-2099-14T3
held in escrow by defendant's real estate attorney until the

settlement with the mortgagee was paid off.

      After waiting two years, Smith wrote to defendant's then

attorney seeking return of the escrowed deed.                     Unbeknownst to

Smith, defendant had leased 61 Greenhill Road to Marianne King

in January 2012 for $1100 per month; King testified she believed

defendant was the owner of the property.                The property was later

leased to Sarah Van Wagner at the rate of $1000 per month.

                                       II

      After hearing evidence about these and other events, the

jury found defendant guilty of: two counts of second-degree, and

one   count      of   third-degree,    theft      of   immovable      property     by

unlawful taking or disposition, N.J.S.A. 2C:20-3(b); two counts

of third-degree theft of movable property by unlawful taking or

disposition,      N.J.S.A.   2C:20-3(a);       two     counts   of    third-degree

forgery, N.J.S.A. 2C:21-1(a)(2); and one count of second-degree

trafficking in personal identifying information pertaining to

fifty or more separate persons, N.J.S.A. 2C:21-17.3.3

      Defendant unsuccessfully moved for judgment of acquittal

or,   in   the    alternative,   for   a    new    trial,   and      he   was   later

sentenced to an aggregate twenty-year prison term, with a six-


3
  This last conviction was based on a charge contained in a
separate indictment.



                                       6                                    A-2099-14T3
year period of parole ineligibility.                Specifically, the judge

imposed the following:

          — count one: a fifteen-year prison term,
          subject to a six-year period of parole
          ineligibility, for second-degree theft of
          immovable property (8 Tanglewood);

          — count two: five years for third-degree
          forgery (concerning 8 Tanglewood);

          — count six: eight years for second-degree
          theft of immovable property (61 Greenhill);

          — count seven: five years for third-degree
          theft of movable property (61 Greenhill);

          — count eight: five years for third-degree
          theft of immovable property (13 Tanglewood);

          — count nine: five years for third-degree
          theft of movable property (13 Tanglewood);

          — count ten: five years for                 third-degree
          forgery (13 Tanglewood); and

          — count "eleven"4: seven years for second-
          degree   trafficking  in   items  containing
          personal identifying information.

The judge ordered that the prison terms on counts one, six,

eight   and   eleven      —    the   three       immovable   property        theft

convictions   and   the       personal       information   conviction    —     run

concurrently with each other, and that the other sentences were

also to run concurrently with each other, but that the prison

4
  This "eleventh" count was actually the tenth count of a
separate indictment; that count was tried together with the
counts in this indictment. In the jury verdict sheet, it was
referred to as count eleven.



                                         7                              A-2099-14T3
terms imposed in the second group were to run consecutively to

the prison terms imposed in the first group of convictions.

                              III

    Defendant appeals, arguing:

         I.   [THE   THEFT   OF   IMMOVABLE  PROPERTY
         CONVICTIONS] MUST BE DISMISSED BECAUSE THE
         STATE FAILED TO PRESENT FACTS SUFFICIENT TO
         CONSTITUTE   A    'TRANSFER'   OF  IMMOVABLE
         PROPERTY.

              A. The State failed to present
              evidence that Kosch's actions were
              sufficient to transfer an interest
              in immovable property . . . .

              B. The jury charges were preju-
              dicially insufficient because they
              failed to define what is a trans-
              fer of an interest, and did not
              explain what the State alleged to
              be the operative act of each
              property.

         II.   [THE   THEFT  OF   IMMOVABLE  PROPERTY
         CHARGES] OF THE INDICTMENT DEPRIVED KOSCH OF
         DUE PROCESS AND FAIR NOTICE BY FAILING TO
         INCLUDE THE ESSENTIAL ELEMENTS AND FACTS OF
         THE CRIMES FOR WHICH HE WAS CONVICTED, AND
         THEREFORE MUST BE DISMISSED.

         III. [THE FORGERY CONVICTIONS] MUST BE
         DISMISSED   BECAUSE  THE   STATE FAILED  TO
         PRESENT SUFFICIENT EVIDENCE OF FORGERY AS
         ALLEGED IN THE INDICTMENT, THE COURT FAILED
         TO PROPERLY CHARGE THE JURY, AND THE JURY
         VERDICT SHEET WAS MISLEADING.

              A. [The] Forgery Counts . . . of
              the Indictment must be dismissed,
              because   the  State   failed  to
              present evidence of the operative




                               8                         A-2099-14T3
    act for which he      is   alleged   to
    have committed.

    B. The Court's failure to include
    the operative act in the Indict-
    ment in the jury charges resulted
    in prejudicial error and there-
    fore, the [Forgery] Counts must be
    dismissed.

    C. The verdict sheet failed to
    distinguish a fourth degree for-
    gery and a third degree forgery,
    and is prejudicial error because
    it misled the jury from the crime
    charged.

IV. [N.J.S.A.] 2C:21-17.3(b) IS VAGUE AND
IMPERMISSIBLY   OVERBROAD,  WHICH   IS   A
VIOLATION OF DEFENDANT'S DUE PROCESS UNDER
THE NEW JERSEY CONSTITUTION AND UNITED
STATES CONSTITUTION.

    A. "Personal identifying informa-
    tion" as defined by [N.J.S.A.]
    2C:21-17.3(b) and the statutory
    inference are vague and overbroad
    as applied and a violation of the
    Defendant's rights under the New
    Jersey and United States Constitu-
    tions.

    B. The State failed to present
    proof that Kosch possessed accur-
    ate personal identifying informa-
    tion   pertaining  to   particular
    individuals.

V. PROFESSOR LINDA FISHER, THE STATE'S
EXPERT WITNESS, HAS NO CRIMINAL EXPERIENCE
OR   RELEVANT  SPECIALIZED   KNOWLEDGE,   AND
THEREFORE, HER QUALIFICATION AS AN EXPERT
AND TESTIMONY TO CRIMINAL THEFT MATTERS IS A
NET OPINION AND SUBSTANTIALLY PREJUDICIAL,
UNHELPFUL TO THE JURY, AND IS PLAIN ERROR.




                      9                         A-2099-14T3
    A. [Professor] Fisher, is cate-
    gorically unqualified in criminal
    matters and permitting her opinion
    testimony as to the criminality of
    a transfer of real property was
    severely prejudicial to Kosch.

    B.   [Professor]   Fisher's   expert
    testimony confused and misled the
    jury   because   the    hypothetical
    nature of the questions was not
    sustained,   there   was   extensive
    commingling of civil and criminal
    law without corrective instruct-
    tion, and incorrect legal conclu-
    sions were expounded, each sub-
    stantially prejudicing Kosch, and
    amounts to plain error.

VI. KOSCH CANNOT BE SENTENCED TO A TERM OF
IMPRISONMENT FOR ANYTHING GREATER THAN A
DISORDERLY PERSONS OFFENSE BECAUSE THE STATE
FAILED TO PRESENT EVIDENCE THAT THE VALUE OF
THE INTEREST STOLEN WAS ANY GREATER THAN
$1.00.

    A. Kosch cannot be convicted for
    more than a nominal value because
    the State failed to prove the
    value of the interest transferred
    as anything greater than nominal.

    B.   Jury  instructions  and   the
    verdict sheet were inadequate with
    regard to grading of the Theft
    offenses for the properties in
    Question.

VII. KOSCH CANNOT BE GUILTY OF THEFT OF
MOVABLE PROPERTY AS A MATTER OF LAW BECAUSE
THE ALLEGED OWNERS DID NOT HAVE RIGHTFUL
CONTROL OF THE PROPERTY AND THEY CONSENTED
TO KOSCH'S CONTROL.

VIII. A NEW TRIAL SHOULD BE ORDERED DUE TO
CUMULATIVE ERROR.



                     10                        A-2099-14T3
We find insufficient merit in Points II, III, V, VI, VII and

VIII to warrant further discussion in a written opinion.                      R.

2:11-3(e)(2).    For    the   reasons   that     follow,   we    agree       the

immovable    property   convictions     cannot   stand,    but    we     reject

defendant's argument that N.J.S.A. 2C:21-17.3(b) is vague and

impermissibly overbroad. Consequently, we affirm all convictions

except the immovable property convictions, and we remand for a

new trial on those counts.

                                   IV

    Defendant argues the immovable property convictions cannot

stand because of a lack of evidence of an unlawful "transfer" of

an interest in immovable property or because the jury charge

lacked sufficient clarity as to the interest alleged to have

been transferred. Specifically, we consider: (a) the meaning and

scope of the governing statute, N.J.S.A. 2C:20-3(b); (b) whether

the evidence was sufficient to support the convictions in light

of our interpretation of N.J.S.A. 2C:20-3(b); and (c) the impact

of our statutory interpretation on the jury's verdict.

                                    A

    N.J.S.A. 2C:20-3(b) renders a person "guilty of theft if he

unlawfully   transfers    any   interest   in    immovable      property      of

another with purpose to benefit himself or another not entitled

thereto." To understand the statute's reach, we ascertain the



                                   11                                  A-2099-14T3
Legislature's      intent      by    looking    to    the     meaning     of    each

implicated word and phrase, namely: "immovable property," "any

interest," "property of another," and "transfer."

      The Criminal Code describes the difference between movable

and immovable property by defining the former as "property the

location of which can be changed, including things growing on,

affixed to, or found in land, and documents, although the rights

represented thereby have no physical location," and by defining

"immovable property" as "all other property." N.J.S.A. 2C:20-

1(e).   The     word    "interest"     standing      alone    is   not    expressly

described, but the Code defines "[i]nterest in property which

has   been    stolen"    as   "title   or    right    of     possession    to   such

property."      N.J.S.A.      2C:20-1(o).      And    "property     of    another"

includes property

              in which any person other than the actor has
              an   interest    which  the    actor   is  not
              privileged to infringe, regardless of the
              fact that the actor also has an interest in
              the property and regardless of the fact that
              the other person might be precluded from
              civil recovery because the property was used
              in an unlawful transaction or was subject to
              forfeiture    as   contraband.    Property  in
              possession of the actor shall not be deemed
              property of another who has only a security
              interest therein, even if legal title is in
              the creditor pursuant to a conditional sales
              contract or other security agreement.

              [N.J.S.A. 2C:20-1(h).]

The statute's verb — "transfer" — is not defined by the Code.



                                        12                                 A-2099-14T3
       Before we consider the proper understanding and scope of

the word "transfer," we briefly mention the non-controversial

application of the defined terms to the charges in question.

First,    there       is    no     question     that    the        three       properties       —    8

Tanglewood,      13     Tanglewood        and    61    Greenhill           —   were     immovable

within    the     meaning          of    N.J.S.A.       2C:20-1(e),             because        their

locations       could        not    be     changed.               Second,       the     interests

encompassed by N.J.S.A. 2C:20-3(b) are broad in light of the

Code's    definition         of     "[i]nterest        in    property          which    has     been

stolen," N.J.S.A. 2C:20-1(o); "interest" would include not just

title    to     the        immovable      property          but     also       the     "right       of

possession," ibid., or any other right derived from ownership or

possession      of     immovable         property.5     See        N.J.S.A.          1:1-2.6    And,

third,    there        is     nothing       about      the        Code's        definition          of

"[p]roperty of another" that would suggest defendant possessed

an interest in any of the properties of sufficient stature to

preclude conviction under this statute; in other words, there is

5
    There is one limitation on this that we later discuss.
6
  In N.J.S.A. 1:1-2, the Legislature provided definitions for
various words and phrases to govern the meaning of statutes
"[u]nless it be otherwise expressly provided or there is
something in the subject or context repugnant to such
construction." Therein, the Legislature defined "property" and
"other property" as including "both real and personal property,"
and also defined "real property" as including "lands, tenements
and hereditaments and all rights thereto and interests therein."
Ibid.



                                                13                                        A-2099-14T3
no question these three properties were owned by others and,

although, as the ostensible contract purchaser, defendant may

have    possessed     a     partial   interest   in    13      Tanglewood    and    61

Greenhill,       he   never    lawfully    acquired      the    interest     he    was

charged with taking. We, thus, turn to whether a "transfer"

occurred within the meaning of N.J.S.A. 2C:20-3(b).

       Because the Code does not define "transfer," we first look

to N.J.S.A. 1:1-1, which counsels that "[i]n the construction of

the laws and statutes of this state,                  . . . words and phrases

shall   be   read     and     construed   with   their      context,   and     shall,

unless inconsistent with the manifest intent of the legislature

or unless another or different meaning is expressly indicated,

be   given   their     generally      accepted   meaning,       according    to    the

approved usage of the language." See State v. Williams, 218 N.J.

576, 586 (2014); Levin v. Twp. of Parsippany-Troy Hills, 82 N.J.

174, 182 (1980); Fahey v. City of Jersey City, 52 N.J. 103, 107

(1968).

       One   legal    dictionary      defines    "transfer"       as   the   act    of

"convey[ing] or remov[ing]" something "from one place or one

person to another," "to pass or hand over from one to another,"

and "to change over the possession or control" of something.

Black's Law Dictionary 1289 (9th ed. Abridged 2010). Obviously,

this    is   a    very      broad   definition    that      encompasses      actions




                                          14                                 A-2099-14T3
inconsistent       with    a     transfer        of   an    interest       in     immovable

property; for instance, one cannot hand over immovable property

to another, nor can immovable property be removed from one place

to another. N.J.S.A. 1:1-2, however, requires consideration not

just of a word's generally accepted meaning but its context as

well;   consequently,          we   find    it     more    likely     the       Legislature

intended a consistent but narrower meaning than that contained

in dictionaries — that is, a meaning similar to that embodied in

the Statute of Frauds, which declares that a "[t]ransfer of an

interest in real estate" means                   "the sale, gift, creation or

extinguishment of an interest in real estate." N.J.S.A. 25:1-10.

In   defining     the     word      "transfer"        in   N.J.S.A.        2C:20-3(b)        in

accordance     with     the    Statute      of    Frauds,     which    has       a   certain

kinship with N.J.S.A. 2C:20-3(b), we examine the matter at hand

and conclude there was evidence from which the jury could find a

theft of immovable property.

      The evidence in the record supported a finding that each

residence was the property "of another" and that defendant's

actions    were    "with       purpose      to    benefit"     himself.          The    legal

question     to    be     pondered         concerns        whether     a     jury       could

legitimately find defendant transferred, in the words of the

statute, "any interest" in these immovable properties.                                  Ibid.

In   arguing      an   absence       of    proof      in   this   regard,         defendant




                                            15                                       A-2099-14T3
interprets the statute's requirement that the State prove an

unlawful transfer of "any interest" as limited to an unlawful

transfer of title.7    He is mistaken.

     The statute does not criminalize just the unlawful transfer

of title or the entire fee simple of immovable property; it

criminalizes   the    unlawful   transfer   of   "any   interest"   —   an

expression that fairly incorporates not only title but lesser

interests as well.8     Accordingly, defendant's argument that the

State failed to show he took for his own benefit title to any of

7
  In this regard, defendant correctly argues a transfer of title
is only complete upon delivery of a deed executed by the
grantor, see H.K. v. State, 184 N.J. 367, 382 (2005); Tobar
Construction Co. v. R.C.P. Associates, 293 N.J. Super. 409, 413
(App. Div. 1996); In re Estate of Lillis, 123 N.J. Super. 280,
285 (App. Div. 1973), and that an unrecorded deed has limited
legal impact, see N.J.S.A. 46:26A-1. But defendant's inability
to effectively transfer title to these properties to himself
does not mean he was incapable of stealing from the true owner
some lesser interest in the property.
8
  In many ways, the argument boils down to the significance of
the Legislature's use of the word "any" in the phrase "any
interest." The ordinary meaning of "any" is "one, some, or all
indiscriminately of whatever quantity." Webster's Third New
International Dictionary 97 (1971). If the Legislature intended
to criminalize only the unlawful taking of title, it would not
likely have said "any interest," which suggests the possibility
of multiple interests and not just the single interest of title
or fee simple, but would have chosen instead phrases or words
such as "the interest," "all interest," or "title." In
indefinitely referring to the object of the theft as "any
interest," the Legislature expected our courts would view
broadly the scope of the proscribed conduct and recognized the
potential that an actor could violate the statute by taking less
than title or the entire fee simple.




                                   16                           A-2099-14T3
the three properties is irrelevant.           We look, instead, at the

evidence to determine whether defendant transferred an interest

in the property.

    The evidence suggests that defendant unlawfully transferred

for his own benefit an interest — the right to possession or the

right to collect rents or both — in the immovable properties in

question.      Specifically, the prosecution demonstrated defendant

utilized fraudulent or forged documents to falsely manifest to

others   his   ownership   of   these    properties   and,   in   doing   so,

unlawfully collected rents on the properties. He may not have or

was otherwise incapable of actually transferring title of those

properties to himself,9 but, as we have demonstrated, that is not

the sole means of violating N.J.S.A. 2C:20-3(b).




9
  Considering the elements necessary to consummate a valid
transfer of real property, see n. 7, supra, if we were to adopt
defendant's proposed interpretation of N.J.S.A. 2C:20-3(b), the
statute would have an extraordinarily limited reach. The
Criminal Law Revision Commission provides an example: "a
trustee, guardian, or other person empowered to dispose of
immovable property of others, subjects himself to theft
liability if he misappropriates the property in ways that may
well be beyond effective relief by civil remedies, i.e., by a
transfer . . . being made by the holder of legal title to a
person acting in good faith." II Final Report of the New Jersey
Criminal Law Revision Commission, comment on § 2C:20-3, at 222
(Oct. 1971). To be sure, this is one way to offend this statute,
but there is nothing in either this commentary or the statute's
language that would suggest it is the only way, see, e.g.,
Territory of Guam v. Gill, 61 F.3d 688 (9th Cir. 1995), cert.
denied, 517 U.S. 1167, 116 S. Ct. 1567, 134 L. Ed. 2d 666
                                                     (continued)


                                    17                              A-2099-14T3
      We lastly consider a category of conduct that may fall

outside this statute — the inconsequential taking of possession

by a squatter or holdover tenant.             This limitation was suggested

by the New Jersey Criminal Law Revision Commission's commentary

on N.J.S.A. 2C:20-3:

            [M]ere use of or occupation of land should
            not be classified as theft, even though it
            be an exercise of unauthorized control with
            a purpose of permanent appropriation. The
            immobility and relative indestructibility of
            real   estate   make   unlawful  occupancy   a
            relatively   minor   harm   for  which   civil
            remedies, supplemented by mild sanctions for
            trespassing, should be adequate.

            [Final Report of the New Jersey Criminal Law
            Revision Commission, supra, at 222 (emphasis
            added).]

It   may   be   inferable    that   in    enacting   N.J.S.A.   2C:20-3   the

Legislature agreed with these comments. See State v. Garofola,

252 N.J. Super. 356, 359-60 (Law Div. 1988); see also Cannel,

New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:20-

3 (2015) (noting that "the framers of this section wanted to bar

the criminalization of 'mere use or occupation of land'").

      Assuming, without deciding, the Legislature's intention was

consistent      with   the   Commission's      concerns,   we   nevertheless

decline to interpret N.J.S.A. 2C:20-3(b) as placing beyond its


(continued)
(1996), or that only empowered fiduciaries are capable                     of
committing the offense set forth in N.J.S.A. 2C:20-3(b).



                                         18                         A-2099-14T3
reach all unlawful uses and occupations of immovable property.

Although the Legislature may not have intended to criminalize

the conduct of squatters and tenants, see Garofola, supra, 252

N.J.   Super.       at    358;   Model      Jury     Charge      (Criminal),     Theft    of

Immovable Property (2011), we see nothing in the statute's plain

language to suggest an unlawful exercise of dominion or control

over   immovable         property     —    coupled     with      the   actor's    unlawful

leasing of the property to another — cannot be prosecuted under

this statute. What occurred here pales in comparison with the

type of de minimis conduct that concerned the Commission.

       With    this      understanding        of     the    meaning      and     scope   of

N.J.S.A.      2C:20-3(b),        we       consider    the     evidence     relevant      to

defendant's three immovable property convictions.

                                              B

       As     for    8    Tanglewood,        through       the     creation      of   false

documents      and       the   use    of     an    alias,     defendant        created   an

appearance of ownership by which he was able to lease the true

owner's immovable property to another. For the reasons we have

already set forth, we find no merit in defendant's argument,

which seems to be based on the lack of an actual transfer of

title, that he could not be convicted                         for having unlawfully

taken an interest in this property.




                                              19                                  A-2099-14T3
      The circumstances concerning 13 Tanglewood are                     different

but the result is the same. There, defendant and the property

owner entered into an agreement for defendant's purchase of the

property.      Defendant, in fact, gave the owner a $1000 deposit

and   later    an     additional    $7500    toward    the    $185,000   purchase

price, and the owner agreed defendant could install utilities to

obtain a certificate of occupancy.              Without ever completing the

purchase,     defendant       rented   the   premises    to    a     third    person

through use of a fraudulent, unrecorded deed.

      To be sure, the evidence demonstrated that both the owner

and defendant lawfully possessed an interest in 13 Tanglewood.

The   true    owner    held    legal   title,    and   defendant      obtained       an

equitable     interest     as    contract      purchaser,     see    Courtney        v.

Hanson, 3 N.J. 571, 575 (1950); Marioni v. 94 Broadway, Inc.,

374 N.J. Super. 588, 612 (App. Div.), certif. denied, 183 N.J.

591 (2005), as well as a limited right to enter the premises

prior to closing.          Defendant's arguably legitimate acquisition

of this limited property interest, however, does not mean the

immovable property or the additional interest he was alleged to

have unlawfully taken was not the "property of another." See

N.J.S.A.     2C:20-1(h).      The   unlawful    acquisition     or    creation      of

additional interests in 13 Tanglewood for his own benefit — that

do not fall within the arguable limited exception of squatting




                                        20                                   A-2099-14T3
or holding over — fell within the ambit of N.J.S.A. 2C:20-3(b).

The State presented evidence from which defendant could have

been convicted of theft of an interest in 13 Tanglewood.

      The evidence concerning 61 Greenhill is also different from

the other two situations.      There, as we have observed, defendant

contracted   with    its   owner,   who,   as   part   of   the   agreement,

executed a deed to be held in escrow pending a closing, which

was   contingent    on   defendant's   negotiation     of   a   satisfactory

settlement with the mortgage holder. That contingency was never

met and defendant, having somehow obtained in the interim the

deed from the escrow agent, leased the property to another.

Again, evidence suggested defendant obtained an interest in the

property — as ostensible contract purchaser — but he did not

obtain a use and occupancy agreement or enter into any other

agreement that gave him the right to lease the premises to a

third person for his own benefit.10

      For these reasons, we conclude the State presented evidence

of a theft of an interest in 8 Tanglewood, 13 Tanglewood, and 61

Greenhill.

10
   Evidence suggested the possibility that defendant, without
authority or agreement, removed the deed from escrow; the theft
of such a document would not appear to constitute a violation of
N.J.S.A. 2C:20-3(b) because the document would constitute
movable property. See N.J.S.A. 2C:20-1(e) (defining "movable
property"   as   including  "documents,   although  the   rights
represented thereby have no physical location").



                                    21                              A-2099-14T3
                                      C

    Despite     our    conclusion     that     N.J.S.A.       2C:20-3(b)         was

applicable to the type of thefts suggested by the evidence, we

conclude that the three immovable property convictions must be

reversed because the jury was not given sufficient guidance.

    That is, we agree with defendant that he could not have

been convicted on this evidence of unlawfully taking "title" to

the properties, but, as we have determined, he could have been

convicted of unlawfully taking "an interest" in the properties.

The court implicitly asked the jury only to determine whether

the former, and not the latter, occurred.              This is apparent from

the verdicts rendered by the jury.           The jury found the value of

the immovable property taken exceeded $75,000.                But when asked,

on the movable theft charges, to evaluate the "rental proceeds

rightfully    belonging     to   [Martha     Smith]"       (the    owner    of    61

Greenhill) and "rental proceeds rightfully belonging to [Janet

Singer]" (the owner of 13 Tanglewood), the jury found those

proceeds had a value greater than $500 but less than $75,000.

Clearly, in assessing the immovable property charges, the jury

believed it was to determine whether defendant unlawfully took

something    more   than   the   rental    proceeds    —    that   he   took     the

immovable property itself.         This was a conclusion the evidence

could not permit and, therefore, those convictions cannot stand.




                                     22                                    A-2099-14T3
       Contrary to defendant's argument, however, dismissal is not

the    appropriate       remedy.    Instead,           we    vacate       the   judgment   of

conviction insofar as it applies to counts one, six, and eight,

and we remand for a new trial in conformity with this opinion.

                                              V

       Defendant       was   charged     in    Indictment           No.    13-05-0187    with

second-degree distributing, manufacturing or possessing fifty or

more      items        containing       personal            identifying         information

pertaining        to     fifty     or     more         separate        persons,     without

authorization and with knowledge he was facilitating a fraud or

injury to be perpetrated by anyone. N.J.S.A. 2C:21-17.3. This

one count was tried with the counts, discussed above, that were

set forth in Indictment No. 13-05-0188. Defendant argues this

statute     is    unconstitutionally               vague      and     overbroad     because

"personal identifying information" is not defined and because

the     inference            authorized           by        N.J.S.A.        2C:21-17.3(c)11

unconstitutionally           eliminates       the      prosecution's        obligation      of

proving his state of mind.              We disagree.


11
  This provision states that the "[d]istribution, manufacture or
possession of 20 or more items containing personal identifying
information pertaining to another person or of items containing
personal identifying information pertaining to five or more
separate persons without authorization shall create an inference
that the items were distributed, manufactured or possessed with
knowledge that the actor is facilitating a fraud or injury to be
perpetrated by anyone." N.J.S.A. 2C:21-17.3(c) (emphasis added).



                                              23                                    A-2099-14T3
    The presumption of validity attaches to every statute and

informs   our        review     of     this    provision       of    the   Criminal        Code.

State    v.       Muhammad,      145    N.J.    23,       41   (1996).     The     burden     of

establishing            a     statute's       unconstitutionality             is     on     the

challenger.          State v. One 1990 Honda Accord, 154 N.J. 373, 377

(1998).            Legislation       "will     not        be   ruled   void       unless     its

repugnancy         to   the    Constitution          is    clear    beyond    a    reasonable

doubt."       Muhammad, supra, 145 N.J. at 41.

    When addressing a dual overbroad and vagueness challenge,

"a court's first task is to determine whether the enactment

reaches       a     substantial        amount        of    constitutionally         protected

conduct," and if it does not, "then the overbreadth challenge

must fail." Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 494, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362, 369

(1982); see also Town Tobacconist v. Kimmelman, 94 N.J. 85, 98

(1983); State v. Badr, 415 N.J. Super. 455, 467-68 (App. Div.

2010). In an overbreadth challenge, the "primary issue is not

notice    or       adequate     standards,       although          these   issues     may    be

involved." State v. Lashinsky, 81 N.J. 1, 16 (1979).                               A statute

may be found to be overly broad when it permits "police and

other officials to wield unlimited discretionary powers in its

enforcement." Ibid. (citation omitted). Defendant argues this

statute       is    unconstitutionally           overbroad          because   it     provides




                                                24                                   A-2099-14T3
officials    with      power     "so     broad    that     the        exercise    of

constitutionally       protected       conduct     depends       on     their    own

subjective views as to the propriety of the conduct."                           Ibid.

(citation omitted).

       Defendant's      contention       that      N.J.S.A.           2C:21-17.3(c)

infringes on constitutionally protected conduct apparently is

based   on   the    individual's       inalienable   right       "of     acquiring,

possessing and protecting property."             N.J. Const. art. I, § 1, ¶

1. In support of this challenge, he argues the statute leads to

"absurd   results"     because,    in     his    view,    the    term     "personal

identifying information" is overbroad.

       A fair reading of the statute in this light12 reveals that

it does not, as defendant contends, criminalize mere possession

of    personal     identifying    information.           The    statute's       terms

"fairly read and properly understood" require law enforcement

officials to be able to refer to objective facts that would lead

a    reasonable    person   to   realize     possession,        manufacture,       or

distribution of such information, "with knowledge that [he] is


12
   "If the person distributes, manufactures or possesses 50 or
more   items   containing   personal    identifying  information
pertaining to another person, or ten or more items containing
personal identifying information pertaining to five or more
separate persons, without authorization, and with knowledge that
the actor is facilitating a fraud or injury to be perpetrated by
anyone the person is guilty of a crime of the second degree."
N.J.S.A. 2C:21-17.3(b)(2) (emphasis added).



                                        25                                 A-2099-14T3
facilitating a fraud or injury," constitutes a violation of the

statute.      N.J.S.A.    2C:21-17.3(b)(2).       The   additional    knowledge

requirement ensures that mere possession of property containing

information, such as defendant's examples of a telephone book or

soccer roster, does not violate the statute. Lashinsky, supra,

81 N.J. at 18.

    Consequently,          defendant's      overbreadth     challenge       fails

because the statute does not restrict constitutionally protected

conduct,      such   as   his   general   right    to   acquire    and   possess

property, only his right to acquire and possess property with

knowledge that he or another will use the property to facilitate

injury   or    fraud.     N.J.S.A.   2C:21-17.3(b)(2);     Badr,     supra,    415

N.J. Super. at 470.

    In considering the next aspect of defendant's argument, we

observe Hoffman Estates directs that a court should examine

              the facial vagueness challenge and, assuming
              the enactment implicates no constitutionally
              protected conduct, should uphold the chal-
              lenge only if the enactment is impermissibly
              vague   in  all   of  its   applications.  A
              plaintiff who engages in some conduct that
              is clearly proscribed cannot complain of the
              vagueness of the law as applied to the
              conduct of others. A court should therefore
              examine the complainant's conduct before
              analyzing other hypothetical applications of
              the law.




                                       26                                A-2099-14T3
            [455 U.S. at 494-95, 102 S. Ct. at 1191, 71
            L. Ed. 2d at 369.13]

      Defendant contends that ordinary people cannot understand

what is prohibited because N.J.S.A. 2C:21-17.3 does not define

"personal    identifying    information."         He   argues     the    vagueness

doctrine is meant to give "fair warning" to a person that an

enactment prohibits that person's conduct, Badr, supra, 415 N.J.

Super. at 470, and specifically the concept that laws should

give a "person of ordinary intelligence a reasonable opportunity

to   know   what   is   prohibited,    so   that       he   [or   she]    may   act

accordingly," Hoffman Estates, supra, 455 U.S. at 498, 102 S.

Ct. at 1193, 71 L. Ed. 2d at 371; see also State v. Cameron, 100

N.J. 586, 591-93 (1985).

      We find no merit in defendant's argument because the phrase

"personal identifying information" is defined. N.J.S.A. 2C:20-1

provides    that   "[i]n   chapters   20    and    21,      unless   a   different

meaning is plainly required," the phrase "personal identifying

information" means


13
  When a statute clearly applies to a defendant's conduct, he or
she may not successfully challenge it for vagueness. The
rationale is evident: "to sustain such a challenge, the
complainant must prove that the enactment is vague not in the
sense that it requires a person to conform his conduct to an
imprecise but comprehensible normative standard, but rather in
the sense that no standard of conduct is specified at all."
Hoffman Estates, supra, 455 U.S. at 495 n.7, 102 S. Ct. at 1191
n.7, 71 L. Ed. 2d at 369 n.7 (emphasis added).



                                      27                                  A-2099-14T3
              any name, number or other information that
              may be used, alone or in conjunction with
              any   other   information,    to   identify   a
              specific individual and includes, but is not
              limited to, the name, address, telephone
              number, date of birth, social security
              number, official State issued identification
              number, employer or taxpayer number, place
              of   employment,     employee    identification
              number,   demand   deposit    account   number,
              savings account number, credit card number,
              mother’s maiden name, unique biometric data,
              such as fingerprint, voice print, retina or
              iris   image   or    other    unique   physical
              representation,     or    unique     electronic
              identification number, address or routing
              code of the individual.

              [N.J.S.A. 2C:20-1(v).]

Although   this       definition      certainly     covers     a    broad    array   of

information, it does so with sufficient clarity to eviscerate

defendant's vagueness challenge. Badr, supra, 415 N.J. Super. at

470.   "[N]o     one    of   common     intelligence        need    guess     at   this

statute's meaning." Id. at 472.

       Applying       the   statute    to    the   case,     N.J.S.A.       2C:21-17.3

"clearly   proscribe[s]"        defendant's         actions.       Hoffman    Estates,

supra, 455 U.S. at 495, 102 S. Ct. at 1191, 71 L. Ed. 2d at 369.

At   trial,     the    State   presented         evidence    that    defendant       was

desirous of contacting owners of distressed properties.                       To that

end, defendant hired an individual who testified he performed

159 skip traces for defendant that included finding a person's

new residence and other identifying information, such as birth




                                            28                                A-2099-14T3
dates,    social      security   numbers,          associates        and    relatives.     If

defendant had trouble locating a person, the skip tracer would

provide    further      information,         including         the   identification        of

prior    litigation,      relatives          and    neighbors.        For       example,    he

rendered a report that provided Green's bankruptcy records, date

of birth, current residence, and social security number.

       At trial, the State called Detective Voris, who testified

he retrieved records of the skip traces from defendant's office,

demonstrating defendant was aware he was in possession of "50 or

more      items       containing        personal          identifying            information

pertaining       to   another    person."          N.J.S.A.      2C:21-17.3(b)(2).         If

defendant    contemplated        his        actions       in    conjunction        with    the

statute,    he    would   have     understood         the      statute's        prohibition.

N.J.S.A. 2C:21-17.3; Badr, supra, 415 N.J. Super. at 470. We

conclude    that      N.J.S.A.   2C:21-17.3,          as       applied     to    defendant's

conduct, was not unconstitutionally vague. Badr, supra, 415 N.J.

Super. at 473.

       Lastly, turning to defendant's burden of proof argument,

the fact that N.J.S.A. 2C:21-17.3(c) permits a jury to infer

defendant     possessed     "20        or    more     items       containing        personal

identifying       information      .    .    .     with    knowledge        that    [he]   is

facilitating a fraud or injury" does not render the statute

unconstitutional.         State v. Humphreys, 54 N.J. 406, 414 (1969).




                                             29                                     A-2099-14T3
Defendant's argument fails because he conflates inferences with

presumptions.       A   "presumption       is   compulsory       and   prima      facie

establishes     a   fact     to    be   true"   unless   disproved.          Ibid.   "An

inference carries no such force as a matter of law[;] . . . a

presumption is a mandatory deduction, born as a matter of law,

while an inference is a permissive deduction which the reason of

the jury may or may not reach without express direction of the

law." Ibid. (emphasis removed).

      The statute in question authorizes an inference based on

certain specific facts; it does not compel the jury to draw that

inference and convict on the inference alone. State v. DiRienzo,

53   N.J.    360,    376   (1969).      Accordingly,     the     burden      of   proof

remains with the State, and defendant's possession of more than

twenty items of personal identifying information only creates a

circumstance by which a jury could "decid[e] whether the State

has proved guilty knowledge beyond a reasonable doubt." Id. at

376-77; see also Humphreys, supra, 54 N.J. at 414.

                                          VI

      To summarize, we conclude defendant is entitled to a new

trial   on   the     three    immovable     property     counts.       The    evidence

precludes     the    jury's       consideration    of    whether       the    interest

defendant     is    charged   with      stealing   is    title    to    those     three

properties; instead, the evidence on those counts limits the




                                          30                                   A-2099-14T3
question to whether defendant stole a lesser interest — the

owner's    right      to   collect     rents         on     those     properties.

Consequently, we also conclude that once those three counts are

finally   adjudicated,     defendant      should     be   resentenced       on   all

convictions, including those with which we have not intervened.

If   defendant   is   convicted   on      any   or    all    of     the   immovable

property counts at the conclusion of the new trial, the judge

should pay particular attention at sentencing to the fact that

any convictions on the immovable property counts will likely

bear great similarity to the conduct for which defendant was

found guilty on the theft of movable property charges; we do not

now need to determine, however, whether those convictions should

merge for sentencing purposes.

      Affirmed in part, reversed in part, and remanded for a new

trial and resentencing.      We do not retain jurisdiction.




                                     31                                    A-2099-14T3
