On appeal from the Superior Court, Law Division, Camden County.
Pressler and Scalera. The opinion of the court was delivered by Pressler, P.J.A.D.
Following a jury trial defendant Ronald Taplin was convicted of theft in the fourth degree based on the allegation that he had assisted a friend, Eric Johnston, in stealing a television set from Johnston's mother by removing it during her absence from the house in which both Johnston and his mother lived. He was sentenced to an 18-month prison term.
On appeal defendant raises the following issues:
1. The introduction into evidence of the defendant's mug shot photographs as well as testimony relating to the mug shot photograph number in possession of the Camden sheriff and reference to the defendant having been incarcerated portrayed the defendant to the jury as a convicted criminal and effectively denied him a fair trial under the Sixth Amendment to the United States Constitution.
2. The trial court committed plain error in failing to charge the "claim of right" affirmative defense as set forth in N.J.S.A. 2C:20-2(c) (not raised below).
3. It was reversible error for the trial court to have refused to instruct the jury that they could return a verdict of guilty of theft with a value of the property being found to have been worth less than $200.00.
We consider the first of these issues in the context of the defendant's defense to the charge. Defendant, because of his prior criminal record, had elected not to testify. His defense, however, was not that he had not participated with Johnston in the removal of the television set but rather that he did not
realize that Johnston, who lived in the house, did not have the right to take and sell it. In accordance with this defensive strategy, defense counsel, in his opening statement to the jury, admitted that defendant had helped Johnston to take the television set but believed Johnston had a right to do so.
During the course of in limine motions heard immediately after the jury was empaneled and sworn, defendant made clear his objection to the prosecutor's intended use at trial of the photographic array from which the eye witness, Nellie Smith, had made an out-of-court identification, moving for the exclusion of those photographs from evidence. Smith, a close neighbor of Johnston's mother, had watched Johnston and defendant remove the television set from the house. She, of course, knew Johnston and recognized defendant as well, having seen him in the neighborhood and in other parts of Camden from time to time during the preceding three years. Defendant's identification as the person who assisted Johnston was consequently never in issue. Smith, who testified for the State, was prepared to make a positive in-court identification. Johnston himself testified for the State, explaining how he and defendant committed the theft.*fn1 And defense counsel, during argument on the in limine motion, assured the judge that he had no intention of contesting Smith's in-court identification.
Defense counsel, in arguing for the exclusion of the photographs, acknowledged that Smith had been taken to the police station after Johnston's mother returned home to discover the theft, that she had there been shown a photographic array of eight persons, including a front and profile view of each, and that she had had no trouble picking ...