May 22, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN R. STEWART, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-07-00782.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2008
Before Judges Lisa and Simonelli.
Defendant was the subject of a forty-eight-count indictment.*fn1 Most counts charged third-degree burglaries, N.J.S.A. 2C:18-2, and related third-degree thefts, N.J.S.A. 2C:20-3. After dismissal of various counts, thirty counts were submitted to the jury,*fn2 and defendant was found guilty of twenty-five counts, of which twelve were burglaries and twelve were the related thefts. Defendant was sentenced to an aggregate term of twelve years imprisonment with a six-year parole disqualifier. He was also ordered to pay restitution and mandatory monetary assessments.
On appeal, defendant does not challenge his convictions on nineteen counts. He argues that the trial judge erred in denying his motion for acquittal at the close of the evidence and before the case was submitted to the jury with respect to burglaries and thefts at three locations, as embodied in counts five and six, nine and ten, and seventeen and eighteen. Defendant also argues that his sentence is excessive. More specifically, defendant argues:
I. THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS ON COUNTS FIVE & SIX.
II. THE COURT ERRED IN DENYING MOTIONS FOR ACQUITTAL ON COUNTS NINE & TEN.
III. THE COURT ERRED IN DENYING MOTIONS FOR ACQUITTAL ON COUNTS [SEVENTEEN & EIGHTEEN].
IV. A REVIEW OF THE JUDGE TRIAL COURTS SENTENCING REASONS SHOW ERROR.
a. The court erred in not finding Mitigating Factors b(1)-the defendant's conduct neither caused nor threatened serious harm and b(2)-the defendant did not contemplate that his conduct would cause serious harm.
b. In finding that the defendant was a "modern day Fagan" who employed others in criminal activities the court erred in considering matter that are not enumerated in N.J.S.A. 2C:44-1a.
c. The court erred in its qualitative assessment of aggravating factors a(3), a(6) and a(9).
d. The existence of aggravating factor a(11) in determining the length of sentence for the imposition of a minimum term under 2C:43-6b.
e. The Court provided no analysis as to why a minimum term was imposed nor why the specific minimum period of parole ineligibility was arrived at.
We reject these arguments and affirm.
On February 23, 2004, a search warrant was executed at defendant's home in Vineland. The police found numerous stolen items in defendant's home, a storage loft above the garage, and in the wooded area surrounding the home. Indeed, defendant was present and showed the police items that did not belong to him. Several days later, after being administered Miranda*fn3 warnings, defendant confessed to many of the crimes and drove around with the police showing them many of the properties he burglarized.
The recovered items were linked to a string of burglaries, most of which occurred in Vineland or nearby Millville between 2002 and early 2004. The charges contained in counts seventeen and eighteen applied to two burglaries that occurred in Vineland at the same property in September 1999 and November 1999. Of the thirty counts submitted to the jury, all of the charged offenses occurred in 2003 or January 2004, except those in counts seventeen and eighteen.
The burglary and theft referred to in counts five and six occurred on May 19, 2003 at Precision Tool & Dye, 4375 South Lincoln Avenue, Vineland. Defendant was also charged in counts seven and eight with burglary and theft from this premises in June or July 2003. Defendant confessed to the later offense, and property reported stolen in that burglary was found at defendant's home. Although defendant did not confess to the May 19, 2003 burglary and theft, at least one item reported stolen at that time, a rifle sighting scope, was positively identified by the owner by virtue of its serial number, and also found at defendant's home.
Counts nine and ten dealt with the April 16, 2003 burglary of a home under construction in the Landmark Development at 2223 Musteral Lane in Vineland. When defendant showed police various locations he burglarized, he pointed out one home on Gettysburg Drive in the Landmark Development, but did not refer to any others in that development. A cooktop and microwave oven stolen from 2223 Musteral Lane on April 16, 2003, while it was under construction, were identified by the owner and recovered from defendant's house.
Counts seventeen and eighteen dealt with two burglaries and related thefts at 4679 Ascher Road in Vineland on September 27, 1999 and November 14, 1999. These incidents were remote in time to the others. Defendant did not point out this location when he showed the police various places he burglarized. Defendant did not admit to burglarizing this property. When the burglaries occurred, the house was under construction. During the first burglary, building construction materials, including wiring, lumber and a basement window, were stolen. During the second burglary, light fixtures, plumbing fixtures and hand tools were stolen. Those items, in boxes labeled with the owner's name, were recovered from the loft above defendant's garage.
At the close of all of the evidence, and before the case was submitted to the jury, defendant moved for judgment of acquittal. See R. 3:18-1. With respect to the counts that are the subject of this appeal, defendant argued that the evidence was not sufficient to establish guilt beyond a reasonable doubt and that those counts should not be submitted to the jury. Judge Waters denied the motion. In addition to the evidence we have described, the judge considered evidence of statements made by accomplices of defendant, which further connected him to the crimes, particularly those at Precision Tool & Dye and the Landmark Development. With respect to the 1999 burglaries at Ascher Road, the judge considered that stolen items were found at defendant's home and also considered defendant's modus operandi in burglarizing many homes under construction in the area. Thus, even though there was no direct evidence linking defendant to that crime, and even though the crime occurred several years before the others, the judge concluded that the jury could reasonably infer that defendant was the perpetrator.
When a motion is made by a defendant at the close of the State's case pursuant to Rule 3:18-1, the trial judge must deny the motion if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967).
Our review of the record satisfies us that Judge Waters correctly applied the Reyes standard, and we find no error in his conclusion that the State presented sufficient evidence to establish defendant's guilt beyond a reasonable doubt on counts five and six, nine and ten, and seventeen and eighteen. Stolen items from each of the burglaries were found in defendant's home. Defendant admitted burglarizing Precision Tool & Dye about one month after the burglary that was the subject of counts five and six. Defendant admitted burglarizing a home under construction in the Landmark Development, although not the specific location that was the subject of counts nine and ten. He was dropped off by his accomplices in these areas late at night for the purpose of committing burglaries. And, although the 1999 Ascher Road burglaries were remote in time and based entirely upon circumstantial evidence, the jury could reasonably infer defendant's guilt based upon his modus operandi of burglarizing homes under construction in the Vineland area, coupled with finding in his home the items stolen from Ascher Road during those burglaries.
We find defendant's sentence unremarkable. Defendant had a considerable prior record, which included numerous arrests, resulting in several disorderly persons convictions and one indictable conviction. He was sentenced in this case for multiple indictable offenses, committed over a long span of time against multiple victims. The judge's findings regarding aggravating and mitigating factors were based on competent and credible evidence in the record; the judge did not apply incorrectly the sentencing guidelines in the Code of Criminal Justice; the sentence is not manifestly excessive or unduly punitive; the judge articulated appropriate reasons for imposing a period of parole ineligibility and for imposing some consecutive sentences; and the sentence is not unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Kruse, 105 N.J. 354, 359 (1987); State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986); State v. Roth, 95 N.J. 334, 363-65 (1984).