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State v. Monroe

November 23, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL MONROE A/K/A MICHAEL DAVIS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-02-0637.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 29, 2007

Before Judges Parrillo and Alvarez.

Tried by a jury, defendant Michael Monroe was convicted of third-degree burglary, N.J.S.A. 2C:18-2. He was sentenced, as a persistent offender, to an extended term of seven years with a two-and-one-half year period of parole ineligibility. N.J.S.A. 2C:43-7a(4), N.J.S.A. 2C:44-3. Appropriate fees and penalties were also imposed. Defendant appeals. Save for a remand for sentencing in accordance with State v. Pierce, 188 N.J. 155 (2006), we affirm the judgment of conviction.

According to the State's proofs, on October 28, 2004, at about 7:30 p.m., Angel Diaz's Plymouth Voyager minivan was broken into while parked outside a church on North Second Street in Camden that he and his family were attending at the time. The car radio was stolen and, as a result, the dashboard was damaged.

The incident was witnessed by Diaz's friend, Augustin Torres, who upon his arrival at the church, "saw two kids . . . with hoodies on" in and around Diaz's car. Believing them to be Diaz's children, Torres walked inside the church, and when he saw Diaz's family, went back outside and saw the two individuals walking away. Torres flagged down a passing police car and told Rutgers University police officer Harry Hertfelder what he had observed, pointing out the two people walking away, who were now only about one-half block away. On routine patrol on the 300 block of North Second Street, Officer Hertfelder had just passed these two men only seconds earlier, in the opposite direction.

Officer Hertfelder then turned his car around and stopped the two men, later identified as defendant and co-defendant Derrick Cooper. Hertfelder radioed another Rutgers University officer, Evans, for assistance. Evans brought Torres over to the intersection where Hertfelder had detained the two men, and Torres identified them as the two individuals he had seen earlier at Diaz's minivan, recognizing them by the clothing they wore, specifically their hoodies.

Some of the police encounter was captured on videotape by surveillance camera located on top of one of the dormitories overlooking the 200 block of North Second Street. As the video played, the jury could observe Hertfelder's patrol vehicle proceeding north on North Second Street, passing defendant and Cooper walking across Penn Street. According to Hertfelder, it appeared from the videotape that as the two were walking, one of them "threw an object" in the area of the Walt Whitman Center. Indeed, another university police officer, Ronald Trivinia, who had done "a quick search of the area" after the two men were arrested, recovered a car radio and faceplate inside a black canvas bag with a "DKNY" logo, found at Second and Penn Streets behind a concrete "quarter-high wall" approximately one-half block from where Diaz's minivan was parked. The concrete wall where the bag was retrieved could also be observed on the videotape.

Cooper eventually pled guilty to the burglary charge and received a four-year probationary term. He testified against defendant, explaining that on the evening of October 28, 2004, en route to his residence, both he and defendant were "drunk" and "broke into a vehicle" in the area of Third and Cooper Streets. Both of them went inside the van and while defendant removed the car radio, Cooper acted as a lookout "to see was the police coming . . . ." When they later saw Hertfelder's patrol car pass them as they were approaching the intersection of Third and Cooper Streets, Cooper told defendant to throw away the black bag containing the radio. Defendant complied and discarded the bag "[i]n the grass somewhere," in the same area where it was eventually recovered by Officer Trivinia. Cooper identified the black "DKNY" bag and radio recovered by Officer Trivinia as the bag used to carry the radio they stole that night.

Defendant denied any wrongdoing. He was with Cooper at the time, whom he planned to help move to his new residence. While en route to Cooper's home, Cooper "[j]ust opened the door handle" to the parked van and "then he went inside." Defendant, who had been drinking earlier, supposedly did not pay attention to what Cooper was doing.

Evidently crediting the State's version, the jury convicted defendant of third-degree burglary. On appeal, defendant raises the following issues for our consideration:

I. THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A WADE HEARING TO DETERMINE THE ADMISSIBILITY OF THE OUT-O[F]-COURT ...


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