On July 14, 2017, Judge Polansky of the Camden County Law Division decided the case of State v. Daniel Marks. This is a rare case of a Law Division case becoming a published opinion. While it is not binding on other courts, it is considered persuasive authority.
The principal issue is whether repeatedly driving through E-Z Pass lanes without a valid transponder constitutes the offense of “Theft of Services” under N.J.S.A. 2C:20-8. Judge Polanksy held in relevant part as follows: Here, the court concludes the presentation to the grand jury establishes a prima facie case under N.J.S.A. 2C:20-8(a). The State presented some evidence as to each element of the crime of theft of services. First, the State presented evidence that defendant purposely obtained a service. Driving over a bridge subject to a toll is a service. By presenting evidence that defendant drove his vehicle over the bridge, the State presented evidence that defendant purposely obtained a service. Second, the State presented testimony that defendant knew that the services were available only for compensation. The State submitted evidence that defendant drove through the lanes marked EZ-Pass Only. This allows an inference that defendant knew that the service was only available in exchange for payment. Defendant additionally admitted he was aware he was intentionally avoiding the toll.
Third, the State presented sufficient evidence of defendant’s physical act of deception. Specifically, the State presented testimony that defendant traveled through the EZ-Pass lane, knowing that he did not have an EZ-Pass transponder. Use of the EZ-Pass Only lane is a representation that the vehicle operator possesses a valid EZ-Pass transponder. Driving through the EZ-Pass Only lane has no significant difference from placing a false slug or token into an unmanned toll collection receptacle. This evidence is sufficient to establish a physical act of deception by defendant. Defendant’s purpose to avoid payment can be inferred from those actions. Additionally, since compensation is ordinarily paid when driving over the bridge, the presumption pursuant to N.J.S.A. 2C:20-8(a) that defendant’s purpose was to avoid payment for the service applies. Finally, defendant admitted his intent was not to pay the tolls.
The Court’s opinion is not clear with regard to when the defendant made the alleged admissions. If they were made during the investigation phase and that evidence was presented to the grand jury, the admissions should be considered in the context of deciding a motion to dismiss the indictment. The admissions would be inappropriate considerations if they were made at the time of a conditional guilty plea.