Following a jury trial defendant was convicted of engaging in the business of "loan sharking," in violation of N.J.S.A. 2A:119A-3. He was also convicted, at the same trial, on seven counts of "loan sharking" representing seven illegal loans made to four different individuals over a 2 1/2-year period, wherein the annual rate of interest charged was between 200 and 300%, in violation of N.J.S.A. 2A:119A-1. He was sentenced on the latter seven charges to consecutive 2-3-year State Prison terms, and on the former charge to a State Prison term of 10-15 years, to be served consecutively to the sentences imposed on the seven charges. In all, he was given State Prison sentences totalling 24-36 years.
Before considering the issues raised on this appeal, we pause to point out that defendant neither testified nor called any witnesses in his defense, and we find the uncontradicted proofs of the State amply supported the convictions.
CONSTITUTIONALITY OF N.J.S.A. 2A:119A-3
Defendant argues that N.J.S.A. 2A:119A-3 is unconstitutional because of vagueness, in that "it does not spell out the degree or details of `engaging in the business' of making loans." The statute provides:
2A:119A-3. Business of making prohibited loans or forbearances; penalty
Any person who engages in the business of making loans or forbearances prohibited by section 1 of this act, or who conspires so to do, shall be guilty of a high misdemeanor and shall be punished by a fine of not more than $10,000.00, or by imprisonment for not more than 25 years, or both.
The contention is without merit. Reading, as we must, N.J.S.A. 2A:119A-1 through 2A:119A-4 as a whole statutory scheme to prevent and punish the crime of loan sharking, we are satisfied that men of common intelligence do not
The trial judge in clear and plain language defined the term to the jury thusly:
Now, what does the statute mean by someone who engages in the business of making loans? What do we mean by business? Well, business as used in the statute pertains in a very broad sense to all gainful activity. A business could be called occupation or work of some sort in which a person is engaged on a regular basis.
If a person engages in a certain type of transaction once and that's all, you certainly wouldn't consider that person to be in the business. If, however, that type of conduct is repeated to the extent that there is a certain regularity to that type of conduct, then it could be inferred properly that that person was in that business. It's in that sense that we use the term business that I have just read to you.
We need hardly labor the point any further since we are satisfied the statute clearly informs those concerned what is proscribed and, therefore, is not void for vagueness.
SCIENTER AND CRIMINAL INTENT
Defendant contends the trial judge erred in refusing to charge the jury that scienter and criminal intent were
Whether a statute provides criminal sanctions for proscribed conduct, without proving criminal intent, is a matter of statutory construction. There are areas where the evil or danger sought to be prevented is so great that the Legislature may, as a matter of public policy, declare an act unlawful without proof of a wrongful intent. State v. Hatch, 64 N.J. 179 (1973); Morss v. Forbes, 24 N.J. 341, 358 (1957). We believe the Legislature felt loan sharking is of that invidious caliber. We would have to be very naive to believe that one who loans money to individuals at annual interest rates in excess of the lawful rates (here it was 200-300%) does not know he is violating the law.
Defendant argues the prosecutor's comments in summation deprived him of a fair trial. The comments complained of consisted of a reference to defendant, by way of sarcasm, as a "giant angel"; likened defendant to Shakespeare's Shylock in exacting a "pound of flesh"; and in referring to a specific loan made by defendant, said the borrower had "his guts torn out." These were strong comments, but in the light of the evidence, defense counsel's summation, and the nature of the charges and proofs, they were justifiably made and can hardly be deemed sufficiently prejudicial to warrant a reversal. United States v. La Sorsa, 480 F.2d 522, 526 (2 Cir.1973), cert. den. 414 U.S. 855, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973); State v. Knight, 63 N.J. 187, 193-194 (1973); State v. Wilson, 57 N.J. 39, 50 (1970). In any event, the trial judge instructed the jury that its verdict must be based on the evidence. See United States v. Ramos, 268 F.2d 878, 880 (2 Cir.1959). If error existed, it was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant's guilt. Milton
Defendant contends the seven individual charges for loan sharking merged in the greater offense of engaging in the business of loan sharking. We agree.
The legislative intent must be garnered from the loan sharking statutes considered in their context as a whole. This is particularly true since they were passed at the same time to effectuate a given result or to overcome a certain evil. N.J.S.A. 2A:119A-1 proscribes the making of loans in the amount of $1,000 or more, at a rate in excess of the annual or equivalent legal rate of interest but not in excess of 50% per year, and designates such offenses as misdemeanors. It then provides that any person who makes a loan at an annual or equivalent legal rate of interest in excess of 50% per year, regardless of the amount or duration of the loan, is guilty of a high misdemeanor.
N.J.S.A. 2A:119A-2 makes it a high misdemeanor, punishable by imprisonment for not more than 25 years, or a fine not greater than $10,000, or both, for any person to use or threaten to use force in connection with a loan made in violation of N.J.S.A. 2A:119A-1. Here the Legislature obviously intended to severely punish loan sharkers, or their agents, who commit or threaten to commit violence upon borrowers of the proscribed illegal loans.
N.J.S.A. 2A:119A-4, not applicable here, made it a misdemeanor punishable by a maximum of three years' imprisonment, or a fine not greater than $25,000, or both, for any person who knowingly possesses, maintains or has control over anything used to record the proscribed loan sharking transactions.
Viewing these statutes as indicated, we are satisfied that one is not guilty of engaging in the business of loan sharking unless it is shown that various loans are made as part of a continuing criminal impulse, namely, to engage in the business of loan sharking. Here, the proofs were not controverted that defendant made at least seven loans proscribed by N.J.S.A. 2A:119A-1 to four different individuals over a period of 2 1/2 years. This was the kind of illegal business the Legislature sought to prevent. For an incisive discussion of the evils of loan sharking, see "Syndicate Loan-Shark Activities and New York's Usury Statute," 66 Colum. L. Rev. 167 (1966).
The seven separate illegal loans were constituent elements of the greater offense of engaging in the business of loan sharking and therefore merged in the conviction of the greater offense. They cannot be fractionalized according to its component parts. State v. Riley, 28 N.J. 188, 195 (1958), app. dism., 359 U.S. 313, 79 S.Ct. 891, 3 L.Ed.2d 832 (1959); State v. Mowser, 92 N.J.L. 474 (E. & A. 1919); Note, "Twice in Jeopardy," 75 Yale L.J. 262, 318-319 (1965). See also, Final Report New Jersey Penal Code, § 2C:1-7 and Commentary.
The unifying element in the cases where "consumption" or "subsidiarity" may be called into play exists in the perpetrator's own mind and in his ultimate goal. Whatever appears to him as the principal object of his criminal endeavors becomes the main object of the law's protection. All other stages or aspects of his action, be they antecedent, simultaneous, or posterior, would assume independent significance only if their perpetration would endanger a different social interest; otherwise, they merge in the offense category protecting the interest towards which the main attention of the perpetrator is directed. [at 522; emphasis added]
If the Legislature had intended to make individual loan sharking acts separate offenses, it would have so provided. Having failed to do so, it is reasonably inferable that the individual offenses merged in the greater offense, because without proof of the individual offenses the crime of engaging in the business of loan sharking could not be proven. The "rule of lenity" which has been often applied in construing legislation should be utilized to prevent multiple convictions where none was intended. See Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); 8 Moore, Federal Practice, § 8.07(2) at 8-60 to 8-61 (1973). The philosophy behind the rule was expressed by Justice Frankfurter thusly:
In view of the nature of the crime here involved, we find no abuse of the trial judge's sentencing discretion on the first count.
Having decided that the seven lesser included offenses (counts 2 to 8 in the indictment) merged in the greater offense (count 1 of the indictment), we reverse the convictions on the seven individual counts for loan sharking, and vacate the sentences imposed thereon. We affirm the conviction for unlawfully engaging in the business of loan sharking.