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NJ Racketeering Conviction Reversed on Statute of Limitations

11
Mar
2010

by in Criminal Appeals

State v. Rachel Marshall, unpublished opinion, App. Div. Docket No. A-6306-08T4 (February 23, 2010) – Order denying dismissal of indictment for violation of statute of limitations affirmed in part, reversed in part, remanded for further proceedings.

“On leave granted, we review the trial court’s denial of defendant Rachel Marshall’s motion to dismiss, as time-barred, the four discrete counts of the instant indictment that charge her individually with crimes…. [T]he trial court held that a ten-year statute of limitations should apply to the racketeering conspiracy charges in Count One.

Such a ten-year time period preceding January 26, 2009 would clearly incorporate defendant’s alleged defalcations in 2001 concerning the real estate and liquor license transactions and the associated bank deposits. The trial court also found that the same ten-year statute of limitations it deemed applicable to the racketeering conspiracy charge in Count One should also be applied to the underlying substantive charges…. [T]he trial court erred in declaring that a ten-year limitations statute applies to this indictment rather than the five-year ordinary limitations period under N.J.S.A. 2C:1-6b(1).

The ten-year interval described in the definitional portion of the racketeering statute, N.J.S.A. 2C:41-1d(1), is not a statute of limitations. Rather, it is a proximity measure that is part of the definition of an actionable ‘pattern of racketeering activity,’ requiring at least two acts in furtherance of the conspiracy to be committed within a ten-year time span…. Consequently, a five-year limitations period, rather than a ten-year period, governs this indictment….

These factual issues of timing and abandonment cannot be decided on the present record. A fair and full assessment of defendant’s statute-of-limitations defense as to Count One must await the development of the facts at trial…. We reach a different conclusion as to the three substantive counts of the indictment….

We discern no reason why the normal limitations principles governing substantive crimes should not pertain here. Under those principles, as enumerated in N.J.S.A. 2C:1-6b(1), defendant cannot be charged with substantive crimes more than five years after their alleged occurrence, absent a tolling argument or some other exception not invoked by the State here…. Those allegations, in essence, hearken back to defendant’s actions in 2001 and do not allege on her part any new acts within the five-year statutory period.” (Michael A. Robbins)

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