On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, 98-5-649-I.
Before Judges Kestin, Steinberg and Alley.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 24, 2001
Defendant was charged with and convicted of a single count of second degree theft. The trial court denied her motion to be sentenced, pursuant to N.J.S.A. 2C:44-1f(2), as for a third degree crime, and imposed a six-year term of imprisonment.*fn1
The trial court found defendant lacked the ability to make restitution and, citing N.J.S.A. 2C:46-1, it ordered the docketing of a $75,000 judgment against defendant, without prejudice to the victim's rights in a civil action.
On appeal, defendant raises the following issues:
POINT I THE ERRONEOUS REFUSAL TO PROVIDE A HEARING REGARDING THE ACCURACY OF STATE PREPARED TRANSCRIPTS OF INCULPATORY TELEPHONE CONVERSATIONS COMPELLED DEFENDANT NOT TO TESTIFY, MANDATING THE REVERSAL OF DEFENDANT'S CONVICTION AND A NEW TRIAL.
POINT II SINCE THERE WAS AN INSUFFICIENT SHOWING THAT DEFENDANT'S TAPED CONFESSION WAS EITHER ACCURATE OR VOLUNTARY, THE TAPED CONFESSION SHOULD HAVE BEEN EXCLUDED, MANDATING THE REVERSAL OF HER CONVICTION.
POINT III DEFENDANT'S MOTION FOR A NEW TRIAL BASED UPON THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT THE STATE HAD TO PROVE THE EXISTENCE OF THE $204,000 —— A MATERIAL ELEMENT OF THE THEFT OFFENSE AND A CRITICAL TRIAL ISSUE —— SHOULD HAVE BEEN GRANTED.
POINT IV THE DENIAL OF DEFENDANT'S REQUEST TO BE SENTENCED TO A NON-CUSTODIAL TERM OR AS A THIRD DEGREE OFFENDER WAS AN ABUSE OF DISCRETION, ESPECIALLY IN LIGHT OF THE FACT THAT THIS NON-VIOLENT INCIDENT REPRESENTED THE 55-YEAR-OLD DEFENDANT'S FIRST AND ONLY ARREST AND CONVICTION.
Our review of the record in the light of the arguments advanced by the parties discloses that, with a single exception, these issues are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The one contention of merit is defendant's Point II that she was entitled to a hearing as to whether statements elicited from her by the victim were voluntary. We remand for such a hearing and for vacation of the judgment of conviction and a new trial if it is determined that prevailing legal standards of voluntariness were not met in respect of those statements.
Defendant was accused of stealing $204,000 from the victim, Anthony Magdon. Defendant and Magdon, both in their fifties, had known each other for many years, since they were teenagers. They had dated briefly in 1965. Beginning in 1991, their relationship became intimate and they began living together in a building which also housed Magdon's business. Magdon confided to defendant the combination to a concealed and alarm-equipped safe located in his office. Magdon testified that he had opened the safe only four times between September 1994 and February 6, 1997, when he discovered that his life's savings were missing. The money had been kept in a briefcase in the safe, and Magdon had had no reason to open the briefcase in the interim.
Magdon was the State's primary witness. Evidence supporting the charge was also presented through Magdon's sister, his niece, and an investigator from the Middlesex County Prosecutor's Office. Defendant did not testify. Her case was presented through the testimony of four relatives and ...