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State v. Romero

Decided: June 16, 1967.


Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.


Defendant was indicted on three counts respectively charging him with (1) breaking and entering with intent to steal (N.J.S. 2A:94-1), (2) larceny (N.J.S. 2A:119-2), and (3) assault with intent to commit burglary (N.J.S. 2A:90-2). The third count was dismissed at the close of the State's case. The jury returned a verdict finding defendant "guilty as charged on both counts." The court subsequently sentenced defendant to State Prison on the breaking and entering charge for a term of 3-5 years, and on the larceny charge for a like term of 3-5 years to run concurrently with the sentence imposed on the first count. The judgment of conviction refers to the second count as "larceny: (H.M.)," the "H.M." indicating a high misdemeanor. This appeal followed.

A brief statement of the facts on which the convictions were based should suffice. On the morning of February 4, 1966 Ramon Carabello entered his home in Passaic, New Jersey, and saw defendant in the act of ransacking the apartment. He tried to prevent defendant from escaping but

was unsuccessful because defendant threatened to strike him with a screwdriver. Thereafter, Carabello found there was missing from the apartment $60 in cash, his diamond ring, his daughter's wristwatch and a ring owned by his wife. A month later he saw defendant enter another building. He summoned the police and defendant was arrested.

The larceny statute, N.J.S. 2A:119-2, provides that any person who steals any money, goods, chattels or other personal property of another is guilty of a misdemeanor, if the price or value of such property is under $200 (petit larceny), and if the price or value thereof is $200 or more such person is guilty of a high misdemeanor (grand larceny).

The larceny count in the indictment charged defendant with stealing one ring valued at $100, one wristwatch valued at $75, and $60 in cash. The total value of the alleged stolen property was $235. If supported by proof at the trial, the offense committed would constitute a high misdemeanor.

Defendant first contends that the trial judge erred in permitting Carabello, the victim of the crimes, to testify as to the value of the stolen jewelry over his objection.

Carabello's testimony relating to the value of the jewelry was adduced by interrogation of the trial judge. After confirming that $60 in cash had been taken, the judge asked Carabello what the value of his diamond ring was as of February 4, 1966, the date of the theft. The answer was, "I would say the ring was worth $125, $150." The judge asked what the watch was worth on that day and the answer was "$95." Defense counsel objected on the ground that Carabello was "not an expert on watches," that expert testimony was required, and there was no evidence that the witness through experience or knowledge was so qualified. The objection was overruled and the judge said that the witness was qualified to testify as to the value of personal property. The judge then asked Carabello for his valuation of his wife's ring and the witness replied, "About $20, $25."

Defendant argues that there was no foundation laid to establish Carabello's qualifications to testify as to the value of the jewelry and that the admission of such testimony constituted error.

In the prosecution of an accused for violation of N.J.S. 2A:119-2, proof of value of the stolen property must be established to determine whether the offense committed was a high misdemeanor or a misdemeanor. It is generally accepted that the rules for establishing value in civil cases are applicable in criminal prosecutions. Hoffman v. State, 24 Okl. Cr. 236, 218, p. 176, 179 (Ct. App. 1923), 2 Wharton, Criminal Law, sec. 449, p. 71 (1957), 52 C.J.S. Larceny 118, p. 940.

It has consistently been held in this State that the owner of an article of personal property, whether or not he is generally familiar with the value of like articles, is competent to testify as to his estimate of the value of his own property and that the extent of its probative value is for the consideration of the jury. Teets v. Hahn, 104 N.J.L. 357, 359 (E. & A. 1928); Nixon v. Lawhon, 32 N.J. Super. 351, 355-356 (App. Div. 1954); Kazanjian v. Atlas Novelty Co., 34 N.J. Super. 362, 369 (App. Div. 1955). This is the prevailing rule throughout the country. 3 Wigmore, Evidence (3 d ed. 1940), sec. 716, and see cases in ...

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