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State v. Burton

March 10, 1998

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SAMUEL BURTON, DEFENDANT-APPELLANT.



Submitted: December 3, 1997

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

Before: Judges Kestin, Cuff and Steinberg.

The opinion of the court was delivered by: Steinberg, J.s.c. (temporarily assigned).

A jury found defendant guilty of third-degree theft from the person. Prior to sentence, defendant pled guilty to an unrelated indictment charging him with possession of a controlled dangerous substance (cocaine). Defendant was also found guilty of a violation of probation on another unrelated indictment as a result of the two convictions. The trial court granted the State's motion to sentence defendant to an extended term as a persistent offender on the conviction for theft from the person, and sentenced defendant to ten years in prison with five years of parole ineligibility. A concurrent four-year sentence was imposed on the charge of possession of a controlled dangerous substance. The trial Judge terminated defendant's probation without improvement. The appropriate statutory assessments and penalties were ordered. Defendant appeals. We affirm.

On October 27, 1995, Glen Craven (victim) took a bus from Vineland to Atlantic City, on his way to work at the Taj Mahal. He was walking down Atlantic Avenue when defendant approached him and demanded two dollars. Defendant said he needed two dollars because his mother was asthmatic. The victim told defendant he did not have two dollars. Defendant said "don't walk away from me. If you don't give me two dollars, I'm going to ... follow you." The victim continued walking and defendant walked along with him. The victim was apprehensive and took off his wrist watch and placed it in his pocket.

The victim entered a book store because he knew someone named Frank who worked there. He felt Frank would help him if necessary. However, Frank was in the back room when the victim entered the store. The victim browsed around the book store hoping defendant would become distracted so that he could leave. At what he thought was an opportune time the victim ran from the store. Defendant ran after him. The victim saw a jitney, flagged it down, and took a jitney ticket from his pocket. Defendant attempted to take the ticket and again demanded two dollars. The victim attempted to get on the jitney. Defendant told the driver the victim didn't want to get on the jitney. The victim said he did want to get on the jitney and struggled to get inside.

The victim was also carrying a duffle bag. Defendant attempted to take it from the victim, and the victim struggled to hold on to it. Defendant finally gained control of the duffle bag and fled. The victim's duffle bag contained a walkman with headphones, tapes, batteries, a belt, and a work shirt. The victim took the jitney to work where his employer called the police.

Officer Vincent DeMaria responded to the call. Officer DeMaria testified that the victim told him his assailant said his name was Sam. The victim could not remember the last name. Officer DeMaria testified that the victim was able to give him a description of the person who took his duffle bag. Although the victim testified that he had previously seen defendant in a local pizza restaurant and that defendant had told him his name was Sam Burton, the victim neglected to reveal that fact to Officer DeMaria. The victim testified he was a little nervous and forgot to tell Officer DeMaria.

A few days later, while working in the area where the crime occurred, Officer DeMaria looked for anyone who fit the description given to him by the victim. He saw defendant standing in a bank drive-through and felt that defendant fit some of the description supplied by the victim, particularly with regard to a knitted cap that closely resembled the description of the cap the suspect was wearing.

Officer DeMaria approached defendant and asked defendant his name, date of birth, and what he was doing. Defendant responded that he was asking people for money so that he could get to Philadelphia and bring his son back home. He asked Officer DeMaria for six dollars. Officer DeMaria proceeded to the Detective Bureau and gave the information he had obtained to Detective Redd.

Detective Redd was able to assemble a photographic array based upon the information received from Officer DeMaria. Six photographs, including one of defendant, were assembled. Each photograph was of a male in orange jail clothing. Detective Redd took the photographic array to the victim and asked if he could identify a suspect. Detective Redd told the victim not to identify a photograph if the person who committed the crime was not in the photographic array. After looking at the photographs for between five and seven minutes, the victim selected defendant's photograph and stated he was positive that that was the person who had committed the crime.

On appeal defendant raises the following issues:

POINT I THE ADMISSION INTO EVIDENCE OF THE PHOTO ARRAY WHICH SHOWED DEFENDANT AND FIVE OTHER MALES IN ORANGE PRISON GARB ALONG WITH THE TRIAL COURT'S PREJUDICIAL INSTRUCTION ...


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