December 4, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BARTOS SIEPRAWSKI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-05-1244-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges A. A. Rodríguez, Collester and C. S. Fisher.
Following a jury trial, defendant Bartos Sieprawski was found guilty of third degree fraudulent use of a credit card in violation N.J.S.A. 2C:21-6(h). We affirm his conviction and sentence.
In early December 2001, defendant fraudulently obtained and attempted to use a credit card in his father's name without permission. He first offered the card to pay for automobile stereo equipment. When the merchant ran the card, it came back as "fraudulent." Defendant offered the merchant a second credit card, which was also declined. Defendant then promised to pay his bill in cash. But when defendant later returned to the store he threatened the merchant by brandishing handcuffs and falsely claiming he was a Bergen County special agent. After defendant left, the merchant reported the incident to the Wallington police and gave defendant's name. Subsequently, defendant was arrested for credit card fraud.
While in jail in lieu of bail, defendant made arrangements with the Kirk Shaw Bail Agency to post bail of $7,500, giving the bondsman his father's Visa card to pay the premium. However, the card was declined because defendant was not an authorized user.
On appeal, defendant raises the following issues:
POINT I - THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT USED CREDIT CARD NO. 4621201030873728 (PREFERRED VISA CARD) AS ALLEGED IN THE INDICTMENT.
POINT II - THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT.
POINT III - THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO DEFINE THE ELEMENTS OF THE OFFENSE, ALLOWING THE JURORS TO DECIDE WHAT CONSTITUTES UNLAWFUL INTENT.
POINT IV - THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EVIDENCE DEMEANING THE DEFENDANT'S CHARACTER.
POINT V - THE DEFENDANT'S PRO SE MOTION TO DISMISS ALL THE INDICTMENTS FOR VIOLATING HIS RIGHT TO A SPEEDY TRIAL SHOULD HAVE BEEN GRANTED.
POINT VI - THE DEFENDANT'S SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT ERRONEOUSLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
B. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES.
C. THE TRIAL COURT'S RELIANCE ON PRESUMPTIVE SENTENCING IS UNCONSTITUTIONAL AND THE DEFENDANT IS ENTITLED TO RESENTENCING.
D. THE DEFENDANT WAS INDICTED AS A "FOURTH DEGREE" OFFENDER ON COUNT THREE OF THE INDICTMENT NO. S-1401-02, AND THE SENTENCE ON COUNT THREE OF THE INDICTMENT NO. S-1401-02 SHOULD NOT HAVE EXCEEDED 18 MONTHS.
The arguments presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2). We offer only the following brief comments.
Defendant argues initially that there were insufficient proofs he violated N.J.S.A. 2C:21-6(h), which reads as follows:
A person who knowingly uses any counterfeit, fictitious, altered, forged, lost, stolen or fraudulently obtained credit card to obtain money, goods or services, or anything else of value; or who, with unlawful or fraudulent intent, furnishes, acquires, or uses any actual or fictitious credit card, whether alone or together with names of credit cardholders, or other information pertaining to a credit card account in any form, is guilty of a crime of the third degree.
His claim that the State's case failed because the bondsman could not recall if Visa or MasterCard that had been presented, overlooks the testimony of the police officer that provided the necessary nexus. Similarly, defendant's contention that the mere presentation of a fraudulently obtained credit card is not a crime runs contrary to the clear language of the statute.
Defendant argues that the prosecutor's opening and summation contained improper comments constituting prosecutorial misconduct and deprived him of a fair trial. The only improper comment was the prosecutor's following statement in her summation: "It's my belief that the state has proven its case beyond a reasonable doubt." A prosecutor may not declare a personal belief in a defendant's guilt. See State v. Farrell, 61 N.J. 99, 103 (1972); State v. Thornton, 38 N.J. 380, 398 (1962). While the prosecutor may comment on the evidence or the weight of the evidence, the comment sub judice was improper because the prosecutor offered a personal opinion which equated to a statement that she believed defendant to be guilty.
However, we do not find the comment to be so egregious that it could have led the jury to a verdict it might otherwise not reach. See State v. Daniels, 182 N.J. 80, 95 (2004); State v. Frost, 158 N.J. 76, 83 (1999); State v. Ramseur, 106 N.J. 123, 322-23 (1987); State v. Macon, 57 N.J. 325, 336 (1971).
Furthermore, since there was no objection to the prosecutor's summation, the matter is reviewable under the plain error standard of whether the error was "clearly capable of producing an unjust result." R. 2:10-2. Defendant has made no such showing.
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