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State v. Garmon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 14, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHNNY GARMON, JR., DEFENDANT-APPELLANT.

On appeal from the State of New Jersey, Law Division, Mercer County, Indictment Nos. 05-04-0321 and 05-09-0700.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 28, 2007

Before Judges Wefing and C.S. Fisher.

Following a trial, defendant was convicted of third-degree burglary, N.J.S.A. 2C:18-2(a)(1), and third-degree theft, N.J.S.A. 2C:20-3(a). The trial judge merged the convictions and sentenced defendant to a ten-year extended term with a five-year period of parole ineligibility. At the time of sentencing, defendant also pled guilty to a charge of third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), which was set forth in an accusation, and sentenced to a five-year term of imprisonment to run concurrent with the other term imposed that day.

Defendant appealed, raising the following arguments for our consideration:

I. INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).

II. THE DEFENDANT'S GUILTY PLEA TO ACCUSATION NO. 05-09-0700 MUST BE VACATED AS IT WAS NOT VOLUNTARILY ENTERED AND DEFENDANT WOULD LOSE ANY BENEFITS TO HIS PLEA IF THIS COURT REVERSES HIS CONVICTION ON THE INDICTMENT.

III. THE DEFENDANT'S MAXIMUM SENTENCE OF TEN YEARS WITH FIVE YEARS TO BE SERVED PRIOR TO BECOMING ELIGIBLE FOR PAROLE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

After carefully reviewing the record, we find insufficient merit in these arguments to warrant discussion in a written opinion.

R. 2:11-3(e)(2). We add only the following regarding Point I.

The testimony upon which the jury had a right to rely reveals that Trenton Police Officers Vincent Mistretta and Alexis Durlacher were dispatched to the corner of Mercer and South Montgomery Streets regarding a call that a burglary had been committed at 126 Mercer Street. The officers arrived in "just about a minute" and spoke with a neighbor, who advised that two black men, one wearing a white T-shirt and the other wearing a red T-shirt, had entered and since departed 126 Mercer Street. The officers were told that the black man in the red T-shirt had walked away toward the Mill Hill Playhouse. They proceeded in that direction and observed a black man wearing a red T-shirt, but quickly lost sight of him.

Officer Mistretta then observed a black man wearing a white T-shirt, later identified as defendant, walking toward him in a hurried manner with his hands in his pockets. Upon seeing the officers, defendant appeared startled. Officer Mistretta departed his vehicle, approached defendant and attempted to engage him in conversation. Defendant started stuttering and sweating profusely. As Officer Mistretta continued to walk with defendant, he noticed a black object sticking out of defendant's right front pants pocket. The object appeared to be a handgun, causing Officer Mistretta to conduct a pat-down of defendant.

Instead of finding a gun, Officer Mistretta found in defendant's pocket a black box measuring four-by-six-by-one inches in dimension. Inscribed on the box was the phrase "property of Burgess Ekman." Officer Mistretta recognized that name as the owner of 126 Mercer Street and placed defendant under arrest. His subsequent search of defendant uncovered "a bunch" of foreign coins; the officer also then discovered that the black box contained two watches, a couple of rings and other assorted jewelry.

In Point I, defendant argues that the trial judge erred by failing to provide the jury with legal instructions molded to the particular factual contentions in the case. He argues that his defense to the charges was that he "happened upon some coins and jewelry on the ground and took possession of them as abandoned property," and that he "did not know that these items were stolen." Defendant claims that the trial judge was obligated to explain to the jury how her legal instructions should be applied to these factual contentions.

Defendant's argument is without merit. He voiced no objection to the charge given by the judge and is, thus, required to now demonstrate that the judge's failure to give additional instructions was "capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).

It is certainly true, as defendant argues, that it is sometimes helpful for trial judges to "give content to statutory language in their charges to juries," State v. Gartland, 149 N.J. 456, 475 (1997), and that judges should not always just read to the jury the elements of the offenses charged and other applicable legal terminology. Some matters require that the trial judge "mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988).

Here, however, we find no reason to conclude that the judge's instructions to the jury required tailoring to the facts. Defendant contends that the judge should have molded his instructions to provide guidance for the jury as to how to consider his argument that he did not take from 126 Mercer Street the property that Officer Mistretta found in his possession, but that he instead found the coins and jewelry on the ground, and assumed the property was abandoned. We reject this contention because there was no evidence in the record to support that argument. The only mention in the record that defendant found the property on the ground occurred during defense counsel's summation. No witness testified and no other evidence supported the contention that defendant found the coins and jewelry in the street. Accordingly, the judge was not required to explain to the jury how it ought to apply the legal elements and her other instructions to the speculative contentions contained in defense counsel's summation.

Affirmed.

20070314

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