On appeal from Superior Court of New Jersey, Law Division, Ocean County.
Pressler, Skillman and D'Annunzio. The opinion of the court was delivered by Skillman, J.A.D.
Defendant was convicted by a jury in a joint trial with her husband John Anderson of two counts of receiving stolen property, in violation of N.J.S.A. 2C:20-7.*fn1 The court sentenced her to a five year term of probation on the condition that she serve a 364 day term of imprisonment in the county jail. The court also required defendant to pay $6,000 in restitution. This court granted defendant's motion for bail pending appeal with respect to the custodial part of her sentence.
On appeal, defendant makes the following arguments:
I. ERRONEOUS SUBMISSION OF UNADMITTED EVIDENCE TO THE JURY, WHICH CAUSES DEFENDANT TO SUFFER PREJUDICE AS A RESULT, IS REVERSIBLE ERROR, AND FAILURE TO DECLARE A MISTRIAL IS AN ABUSE OF THE TRIAL COURT'S DISCRETION.
II. FAILURE TO GRANT A SEVERANCE FROM PREJUDICIAL JOINDER TO LAURIE ANDERSON WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION WHERE THE EVIDENCE AGAINST HER CO-DEFENDANT WAS FAR MORE DAMAGING THAN THE EVIDENCE AGAINST HER CAUSING THE GUILT OF JOHN ANDERSON TO "RUB OFF" ON HER.
III. THE TRIAL JUDGE ABUSED HIS DISCRETION WHEN HE FAILED TO SUPPRESS THE EVIDENCE SEIZED FROM THE DEFENDANTS' HOME SINCE THE POLICE VIOLATED THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES BY USING EXCESSIVE FORCE AND RECKLESSNESS IN THE EXECUTION OF THE SEARCH WARRANT.
Defendant's second and third points are clearly without merit and do not require discussion. R. 2:11-3(e)(2). However, we conclude that the trial court committed reversible error in permitting the jury to consider evidence which was not admitted at trial.
The relevant facts may be briefly stated. The State charged that defendant's husband burglarized a jewelry store located in a flea market on Route 70 in Lakewood on March 6, 1988 and stole in excess of $100,000 in merchandise. There were no eyewitnesses to the crime. However, two store employees identified defendant's husband from a police photo array as a person who had been in the store the day before the burglary. Consequently, the police commenced an undercover investigation of defendant's husband, which involved the examination of garbage put out for disposal at the home he occupied with defendant and his parents.*fn2 This investigation revealed a soup can containing numerous jewelry tags used in the store and a money wrapper identified as having been stolen in another burglary.
Based on this information, the police obtained a warrant to search defendant's home. This search revealed approximately $10,000 in jewelry which the owners of the jewelry store identified as part of the proceeds of the crime. The search also revealed a blue sports bag which the owners claimed had been taken in the burglary and which the State theorized had been used to transport the jewelry from the store. Some pieces of jewelry identified as having been taken from the jewelry store were found in the bedroom which defendant occupied with her
husband and other pieces were found in the bedroom occupied by her husband's parents.
Defendant testified in her own defense that all of the jewelry found in her bedroom had been purchased by her or by family members. She also testified that she had purchased the blue sports bag at a local store. Defendant's testimony was supported by her sister, who testified that she purchased several of the alleged stolen pieces of jewelry as gifts for her ...