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State v. Mann

Decided: November 27, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARVIN T. MANN, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Passaic County.

Gaulkin, Havey and Skillman. The opinion of the court was delivered by Gaulkin, P.J.A.D.

Gaulkin

Defendant was found guilty by a jury of third-degree theft by deception (Count One, N.J.S.A. 2C:20-4), fourth-degree receipt of a stolen credit card (Count Two, N.J.S.A. 2C:21-6c(1) and (2)) and fourth-degree uttering a forged credit card (Count Three, N.J.S.A. 2C:21-1a(2) and (3)). At sentencing the trial judge imposed a five-year custodial term with two years of parole ineligibility on Count One, into which the Count Three conviction was merged, and a concurrent 18-month sentence on Count Two. On this appeal from the judgment, defendant urges:

POINT I.

The trial court erred in failing to grant defendant's motion for a judgment of acquittal of theft by deception in the third-degree.

POINT II.

The trial judge's supplemental instruction to the jury defining theft by deception was inadequate and, in context, misleading, requiring the reversal of the conviction of that offense. (Not raised below).

POINT III.

The trial court committed reversible error in failing to instruct the jury that in order to aggregate the amounts involved in the three thefts it would have to determine that the existence of one scheme or course of conduct underlying the thefts was an essential element of third-degree theft and consequently a fact to be proven beyond a reasonable doubt. (Not raised below).

POINT IV.

The parole ineligibility term is not supported in the record nor in accord with the sentencing guidelines of the Code and should be vacated.

The facts are undisputed. Defendant sought to purchase a television set at a Sears store, presenting a Sears credit card issued to one Michael ...


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