On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-07-0810.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Lisa and Alvarez.
On January 5, 2006, a jury found defendant Michael M. Roberts guilty of fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3, but acquitted him of third-degree burglary, N.J.S.A. 2C:18-2, the remaining count of the indictment. He was sentenced to eighteen months of imprisonment and assessed appropriate fines and penalties. We affirm defendant's conviction as well as his sentence.
Defendant presents the following arguments on appeal:
POINT I THE COURT REVERSIBLY ERRED IN DENYING ROBERTS' MOTION FOR A JUDGMENT OF ACQUITTAL ON HIS COUNT 2, THEFT CHARGE BECAUSE OF INSUFFICIENT EVIDENCE. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) PARA. 10)
POINT II THE COURT REVERSIBLY ERRED IN FAILING TO CHARGE THE JURY AS TO THE LEGAL DEFINITION OF "TOOK OR EXERCISED UNLAWFUL CONTROL" OVER MOVEABLE PROPERTY AS AN ELEMENT OF THE COUNT 2 CHARGE OF THEFT OF MOVEABLE PROPERTY AGAINST ROBERTS. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PARA. 10)
POINT III THE COURT'S CHARGE REGARDING INFERRING GUILT FROM EXCLUSIVE POSSESSION OF THE STOLEN ITEMS WAS FATALLY FLAWED BECAUSE (1) THERE WAS INSUFFICIENT EVIDENCE ON THE RECORD THAT ROBERTS ACTUALLY HAD EXCLUSIVE POSSESSION OF THE STOLEN ITEMS AND (2) THE FORM OF THAT CHARGE VIOLATED ROBERTS' CONSTITUTIONAL RIGHTS TO REMAIN SILENT. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PARA. 10) (PARTIALLY RAISED BELOW)
POINT IV THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO EXCLUDE TESTIMONY AS TO THE THREE INCH KNIFE FOUND ON ROBERTS' PERSON AT HIS ARREST BECAUSE THE STATE LOST THAT EVIDENCE AND THEREBY PRECLUDED AN INVESTIGATION OR EVALUATION BY THE DEFENSE AS TO WHETHER A KNIFE OF THAT SIZE, SHARPNESS AND CONSTRUCTION WAS CAPABLE OF CUTTING THROUGH A SCREEN OR OF PRYING OFF A SCREEN FROM THE BASEMENT WINDOW AT 619 BROOKSIDE PLACE. (U.S. CONST. AMENDS. VI AND IV; N.J. CONST. (1947) ART. I, PARA. 10)
POINT V THE COURT REVERSIBLY ERRED IN REJECTING DEFENSE COUNSEL'S REQUESTED CHARGE AS TO DESTROYED EVIDENCE AND IN GIVING ITS OWN INADEQUATE CHARGE. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PARA. 10)
POINT VI ROBERTS' CONVICTION AND SENTENCE SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT IN EXCEEDING THE SCOPE OF LEGITIMATE COMMENT ON SUMMATION AND ARGUING WELL BEYOND THE SCOPE OF THE UNDERLYING RECORD THAT ROBERTS STASHED THE UNRECOVERED ITEMS AND ON THE VALUE OF THE ITEMS. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PARA. 10)
POINT VII ROBERTS' SENTENCE SHOULD BE REVERSED AS ILLEGAL AND EXCESSIVE.
The evidence adduced at trial established that some time at the end of March or beginning of April 2005, defendant moved out of an apartment on the first floor of 617 Brookside Place in Plainfield. On April 12, 2005, defendant rang the doorbell to a first-floor unit at the apartment building next door, 615 Brookside Place. When his former neighbor, Tonda Phillips, answered, defendant asked her if he could leave two televisions in her residence and said that his wife would ...