NOT TO BE PUBLISHED WITHOUT
THE APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY
CAMDEN COUNTY
LAW DIVISION, CRIMINAL PART
INDICTMENT NO. 17-03-00575
STATE OF NEW JERSEY,
Plaintiff,

APPROVED FOR PUBLICATION

v.

June 3, 2019
COMMITTEE ON OPINIONS

DANIEL MARKS,
Defendant.

Decided: July 14, 2017
Leo Feldman, Assistant Prosecutor, for plaintiff (Mary Eva Colalillo, Camden
County Prosecutor, attorney).
Raquel DeStefano, Assistant Deputy Public Defender, for defendant (Joseph E.
Krakora, Public Defender, attorney).
POLANSKY, J.S.C.
PROCEDURAL HISTORY
Under Indictment Number 17-03-00575, defendant Daniel Marks is
charged with third-degree theft of services in violation of N.J.S.A. 2C:20-8(a)
(count one).

 STATEMENT OF FACTS
The State alleges that on November 23, 2016, Cpl. Richard Zappile of
the Delaware River Port Authority received information that a 2011 grey
Hyundai, registered to Erinn Thompson, repeatedly evaded tolls while crossing
the Benjamin Franklin and Walt Whitman bridges, by driving through the
EZ-Pass Only lanes without having a valid EZ-Pass transponder. Cpl. Zappile
was provided with a log of each violation as well as images and the license
plate number of the offending vehicle. A review of the logs showed that
between May 2, 2016, and November 15, 2016, the vehicle made 220 crossings
of the Benjamin Franklin Bridge and four crossings of the Walt Whitman
Bridge without paying the five-dollar toll. The total amount of unpaid tolls
was $1120. Administrative fees totaled $5600. Notices of each violation were
mailed to the registered owner of the vehicle, but she failed to respond to the
notices.
Cpl. Zappile contacted Thompson, who advised him that her boyfriend,
defendant Daniel Marks, was the operator of the motor vehicle at the time of
these violations. Defendant later contacted Cpl. Zappile and admitted that he
was responsible for all of the violations. Defendant subsequently surrendered
himself to police and provided a recorded statement in which he admitted that
he was responsible for each and every toll evasion, that he knew he was

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 required to pay a five-dollar toll, and that he intentionally drove through the
EZ-Pass lane to avoid paying the toll. He also admitted that he received a
violation notice for each violation and ignored the notices.
On February 8, 2017, this case was presented to a Camden County
Grand Jury. The sole witness at the hearing was Cpl. Zappile, who testified to
the above facts. These facts are not disputed by defendant.
LEGAL ANALYSIS
A grand jury holds a central role in the enforcement of criminal law in
New Jersey. The New Jersey Constitution provides that “no person shall be
held to answer for a criminal offense, unless on the presentment or indictment
of a grand jury.” N.J. Const. art. I, ¶ 8. The grand jury “must determine
whether the State has established a prima facie case that a crime has been
committed and that the accused has committed it.” State v. Hogan, 144 N.J.
216, 227 (1996). The grand jury has the additional role of making sure the
State does not bring “arbitrary, oppressive, and unwarranted criminal
accusations.” State v. LeFurge, 101 N.J. 404, 418 (1986). See also Hogan,
144 N.J. at 228 (“We have recognized that the grand jury is the ‘primary
security to the innocent against hasty, malicious, and oppressive persecution.’”
(quoting State v. Del Fino, 100 N.J. 154, 164 (1985))).
The bar for dismissing a grand jury’s indictment is high. An indictment

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 should be dismissed “only on the ‘clearest and plainest ground’” and “only
when the indictment is manifestly deficient or palpably defective.” Hogan,
144 N.J. at 228-29 (quoting State v. Perry, 124 N.J. 128, 168 (1991)). This
decision “lies within the discretion of the trial court.” Id. at 229 (citing State
v. McCrary, 97 N.J. 132, 144 (1984)). Moreover, the Court is within its right
to exercise its power in dismissing an indictment to correct injustices. Id. at
231. “[O]ur precedents make clear that this Court may invoke its supervisory
power to remedy perceived injustices in grand jury proceedings.” Ibid.
A trial court considering a motion to dismiss an indictment must
consider whether the evidence presented to the grand jury establishes a prima
facie case against a defendant. “An indictment that appears sufficient on its
face stands if the State presents the Grand Jury with at least ‘some evidence’
as to each element of a prima facie case.” State v. Vasky, 218 N.J. Super. 487,
491 (App. Div. 1987) (holding that the State presented insufficient evidence as
to the charge of theft, where the only evidence presented as to the value of the
stolen property was not based on personal knowledge and was speculative).
However, “the quantity and quality of evidence before a grand jury need not be
much to support an indictment.” Id. at 489.
A grand jury shall not “return an indictment unless the State has
presented evidence which together with the reasonable inferences [they] draw

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 from that evidence leads [them] to conclude that (1) a crime has been
committed and (2) the accused has committed it.” State v. Morrison, 188 N.J.
2, 13 (2006). A court looking at a grand jury transcript on a motion to dismiss
an indictment “should evaluate whether, viewing the evidence and the rational
inferences drawn from that evidence in the light most favorable to the State, a
grand jury could reasonably believe that a crime occurred and that the
defendant committed it.” Ibid. (citing State v. Reyes, 50 N.J. 454, 459
(1967)). Dismissal of an indictment is proper if it is factually unsupported on
its face or in the grand jury proceedings. State v. Mason, 355 N.J. Super. 296,
299 (App. Div. 2002).
To sustain a conviction under N.J.S.A. 2C:20-8 for theft of services, the
State must establish four elements: (1) that defendant purposely obtained a
service; (2) that defendant knew the services were available only for
compensation; (3) that defendant obtained the services by deception or threat,
or by false token, slug or other means, including but not limited to mechanical
or electrical devices or through fraudulent statements; and (4) that defendant’s
purpose was to avoid payment for the service. The theft of services statute
provides that, “[w]here compensation for service is ordinarily paid
immediately upon the rendering of such service, as in the case of hotels and
restaurants, absconding without payment or offer to pay gives rise to a

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 presumption that the service was obtained by deception as to intention to pay.”
N.J.S.A. 2C:20-8(a).
Defendant argues that the State failed to establish that defendant
obtained services by deception in the presentation to the grand jury. The
Model Criminal Jury Charges provide:
A person “deceives” if he/she “purposely creates or
reinforces a false impression, including false
impressions as to law, value, intention or other state of
mind; but deception as to a person’s intention to
perform a promise shall not be inferred from the fact
alone that he/she did not subsequently perform the
promise.” A person also deceives when he/she
“prevents another from acquiring information which
would affect (his/her) judgment of a transaction; or
fails to correct a false impression which the deceiver
previously created or reinforced, or which the deceiver
knows to be influencing another to whom he/she
stands in a fiduciary or confidential relationship.”
[Model Jury Charges (Criminal), "Theft of Services
(N.J.S.A. 2C:20-8(a))" (rev. Mar. 22, 1999).]
A wide range of conduct is criminalized under the theft of services
statute, including tampering with a meter, putting slugs in turnstiles, and hiring
workers without an intention to pay them. See Cannell, N.J. Criminal Code
Annotated, cmt. 2 on N.J.S.A. 2C:20-8 (2016). To obtain a conviction for
theft of services, the State must establish a physical or verbal act of deception.
State v. Kocen, 222 N.J. Super. 517, 520 (App. Div. 1988).
Defendant relies upon State v. Kocen to support his argument that his
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 conduct is not a criminal act under the statute. The court in Kocen reversed
the defendant’s conviction for theft of services where the defendant moved
into a home supplied with natural gas service but never paid for the natural
gas. Id. at 519. Due to a clerical error, the gas company never billed the
defendant for the use of the gas nor changed the account holder. Ibid. The
court held that despite the defendant’s knowledge that owners typically pay for
natural gas, since there was no “verbal or physical act of deception, fraud or
threat, or false token, slug, mechanical or electronic device or like means
employed to avoid payment for the service,” the defendant did not violate the
statute. Id. at 520. The defendant there did not tamper with the meter or
provide any false statements to the gas company. Ibid. See also State v.
Bennet, 194 N.J. Super. 231, 235 (App. Div. 1990) (reversing a conviction for
theft of services where the defendant applied for and was granted a line of
credit at a casino despite the defendant’s representations of little resources,
where the bank later declined the credit application).
Here, the defense argues that the indictment must be dismissed because
the State failed to present to the grand jury evidence of any physical or verbal
act of deception. Defendant asserts that like the accused in Kocen, he did not
make any representations or present any false tokens. Additionally, defendant
argues that failure to pay an EZ-Pass toll is a civil issue, not a criminal act.

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 Third, defendant contends that he was improperly charged with a third-degree
offense. Defendant asserts that because this conduct should be penalized
through civil penalties, theft of services is not subject to the gradation of theft
offenses in N.J.S.A. 2C:20-2(b).
In response, the State argues that this case is distinguishable from
Kocen. In Kocen, the gas company delivered gas to the defendant without
billing the defendant, due to a clerical error. The State submits that no one
delivered the bridge or toll service to defendant Marks without seeking
payment for the service. Rather, the State argues defendant repeatedly took
the volitional action of entering the lane marked EZ-Pass Only and driving
through the toll without having an EZ-Pass transponder. Defendant repeatedly
drove through the EZ-Pass Only lanes for the purpose of avoiding payment for
the service, use of the bridge, and concealed this from toll collectors.
The State also asserts that the grading statute, N.J.S.A. 2C: 20-2(b),
applies in this case. As the title of the statute suggests, “Consolidation of theft
and computer criminal activity offenses,” the provisions of N.J.S.A. 2C:20 2(b) apply to theft offenses generally. As theft of services is located within the
same section of the criminal code, the gradation portion applies to theft of
services. Likewise, the evidence presented to the grand jury demonstrates that
the value of the toll evaded totals $1120. N.J.S.A. 2C:20-2(b) provides that

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 theft constitutes a crime of the third degree if the amount involved exceeds
$500 but is less than $75,000. Finally, the State argues that the existence of
civil liability does not preclude criminal action for the same conduct, citing
State v. Darby, 246 N.J. Super. 432 (App. Div. 1991).
DECISION
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

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 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.
Defendant’s reliance upon Kocen is misplaced. Here, there is a physical
act of deception by defendant. By repeatedly driving through the EZ-Pass
Only lane without a valid transponder, defendant was committing an act of
deception, unlike Kocen, where the defendant was never billed for the use of
natural gas.
Counsel’s argument that the theft of services statute does not fall within
the grading provisions of N.J.S.A. 2C:20-2(b) is not supported by the statute or
case law. The grading portion of the theft statute is a general provision which
applies to all categories of theft. N.J.S.A. 2C:20-2(b)(2) makes theft of more
than $500 but less than $75,000 a third degree crime. Defendant made 220
crossings of the Ben Franklin Bridge and four crossings of the Walt Whitman

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 Bridge from New Jersey to Pennsylvania without paying the five-dollar toll,
making each individual violation amount of only five dollars. 1
Pursuant to N.J.S.A. 2C:20-2(b), “[a]mounts involved in thefts or
computer criminal activities committed pursuant to one scheme or course of
conduct, whether from the same person or several persons, may be aggregated
in determining the grade of the offense.” The New Jersey Supreme Court has
held that theft-based offenses may be aggregated, including theft by deception.
State v. Diorio, 216 N.J. 598, 618 (2014). When discussing aggregating theft
by deception for the purposes of the statute of limitations, the Court in Diorio
explained that our “courts have found a plain appearance that the Legislature
intended to prohibit a continuing course of conduct in situations involving a
common scheme of ongoing conduct and where, by the terms of the statute
prohibiting the conduct, the amounts involved can be aggregated to form a
single offense.” Id. at 617 (citing State v. Coven, 405 N.J. Super. 266, 276
(App. Div. 2009)).
Likewise, in State v. Childs, the Appellate Division found a continuing
course of conduct where the defendant raised money for his corporation. 242
N.J. Super. 121, 134 (App. Div. 1990). The defendant in Childs misled his

1

The five-dollar toll is paid crossing the bridge from New Jersey to
Pennsylvania. No toll is required crossing the bridge from Pennsylvania to
New Jersey.
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 investors and issued short-term, unsecured, high-interest notes, which were
later found to be of no value. Id. at 126. See also State v. Tyson, 200 N.J.
Super. 137, 139-40, 150-51 (Law Div. 1984) (finding continuous course of
conduct where the defendant made false representations to fraudulently obtain
and renew welfare benefits, noting that "[t]he defendant's course of conduct
was one scheme extending over a period of time involving the same victim
perpetrated by the same deception" in which "the fruits of the defendant's
scheme were received in installments rather than in a lump sum," and that the
"consolidation of [the] theft offenses provision in N.J.S.A. 2C:20-2(b)(4)"
applies).
The Supreme Court recently reiterated the distinction between crimes
that can be classified “as either a discrete act or a continuing offense.” State v.
Jones, 445 N.J. Super. 555, 568 (App. Div. 2016) (quoting Diorio, 216 N.J. at
614). “‘A discrete act’ is one that occurs at a single point in time . . . . A
continuing offense involves conduct spanning an extended period of time and
generates harm that continues uninterrupted until the course of conduct
ceases.” Diorio, 216 N.J. at 614. The New Jersey Code of Criminal Justice
includes a presumption against continuous offenses, however, that presumption
is overcome if the statute defining the offense includes conduct which persists
over time. Id. at 615-16. "If the scheme that constitutes the offense is one

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 which 'play[s] out over the course of many days, weeks, months, or even
years[,]' then it is a course of conduct." Jones, 445 N.J. Super. at 568 (quoting
Diorio, 216 N.J. at 618).
The conduct at issue occurred during the period May 2, 2016, to
November 15, 2016, a period of 198 days. These 224 crossings of the bridge,
without paying the toll, occurred at a rate of more than once per day. This
conduct persisted over an extended period of time, essentially on a daily basis.
These facts suffice to establish a continuing course of conduct and trigger the
provision in N.J.S.A. 2C:20-2(b) which allows the amount of the thefts to be
aggregated for the purpose of determining the degree of the crime.
Although defendant here is charged with theft of services, not theft by
deception, the court finds this distinction to be immaterial. N.J.S.A. 2C:202(b) applies equally to both statutes. Defendant allegedly engaged in a course
of conduct that involved an intent to deceive the same victim. The State
presented evidence to the grand jury that defendant evaded $1120 in tolls, each
time driving through the EZ-Pass Only lane with no transponder. Defendant
used the same vehicle each time, which belonged to his girlfriend, and
deliberately avoided paying the tolls. Similar to the defendants in Tyson and
Childs, defendant engaged in repeated, similar acts of deception, with the
overarching goal of avoiding paying tolls. Therefore, the third-degree charge

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 here is proper.
Finally, the court rejects defendant’s argument that the penalty for toll
evasion should be limited to civil liability only. The court rejects this
argument since the imposition of a civil remedy and a criminal penalty are not
mutually exclusive events.
The Appellate Division examined the dichotomy between criminal
sanctions and civil penalties in the context of an analysis whether double
jeopardy barred a later criminal proceeding in the case of Darby, 246 N.J.
Super. at 432. There, the defendant argued that the prior imposition of civil
penalties under N.J.S.A. 49:3-70(b) for violations of the Uniform Securities
Law barred a later prosecution alleging conspiracy to commit theft in violation
of N.J.S.A. 2C:5-2, 2C:20-4 and 2C:20-9. Id. at 435. The defendant moved to
dismiss the indictment based upon the constitutional protection against double
jeopardy, arguing that the prior civil action seeking civil penalties under the
Uniform Securities Law precluded the later criminal prosecution.
The Darby court explained that the twin goals of a criminal prosecution
are retribution and deterrence. Id. at 445. Civil penalties on the other hand
also have a remedial purpose and do not exclusively serve the goals of
retribution and deterrence. Id. at 444. The Darby court instructed that a court
must evaluate whether the civil penalty is actually assessed for a punitive

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 purpose to determine whether double jeopardy applies. Id. at 443.
The ability of the State to seek both civil penalties and criminal liability
as a result of the same or similar conduct is not limited to securities violations.
The statutory scheme for the enforcement of tax laws likewise permits both
civil and criminal penalties. N.J.S.A. 54A:9-6 provides for civil penalties as a
result of a failure to file a tax return or the filing of a fraudulent tax return. At
the same time, where there is an intent to defraud the state or to evade or avoid
the payment of taxes, criminal penalties may also be imposed pursuant to
N.J.S.A. 54:52-8 and N.J.S.A. 54:52-9.
No case has been cited by defendant which precludes the imposition of
both civil and criminal penalties as a result of the same conduct. The court
finds that no prohibition exists which would prevent the State or other
governmental agency from seeking both criminal and civil penalties as a result
of the same or similar conduct. Rather, the only limitation to the right of the
State to seek such penalties is the potential that where the civil penalties are
deemed to be assessed primarily to serve the punishment goals of retribution
and deterrence, an analysis would be required to determine whether double
jeopardy attaches.
Here, a demand for civil penalties has been made but no formal court
proceedings commenced to collect those civil penalties. Further, the civil

15

 penalties assessed here also serve a remedial purpose and serve to compensate
the toll collecting authority for the costs associated with collection of unpaid
tolls. Additionally, the court notes that the civil penalties are imposed
regardless of whether the toll violation is inadvertent or intentional. N.J.S.A.
27:23-34.2(a).
For these reasons, the court concludes that the attempt to collect a civil
penalty as a result of defendant’s failure to pay the required toll on multiple
occasions does not preclude indictment or conviction for this conduct.
Accordingly, the motion to dismiss the indictment will be denied.

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