On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. I-04-09-1755.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2008
Before Judges Wefing and LeWinn.
A jury convicted defendant of three counts of third-degree burglary, N.J.S.A. 2C:18-2; one count of second-degree theft by unlawful taking, N.J.S.A. 2C:20-3; and two counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3. At sentencing, the trial court merged the two third-degree theft convictions into the second-degree conviction and sentenced defendant to ten years in prison, with a five-year period of parole ineligibility, to be served consecutively to the sentence defendant was then serving. The trial court also merged two of the burglary convictions into the remaining burglary conviction and sentenced defendant to five years in prison, to be served concurrently with the ten-year sentence for theft. Fines and penalties were assessed. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we have concluded that defendant's convictions must be reversed and the matter remanded for a new trial.
In 1999, the professional basketball player Patrick Ewing resided in Englewood Cliffs. Mr. Ewing was away during the weekend of September 17 to 19, 1999. When he returned home, he discovered that his house had been broken into. The interior of the house had been ransacked. Two automobiles, one a Mercedes Benz, the other a Lincoln Navigator, had been taken, together with personalty having an estimated value in excess of $80,000. Included in the items stolen was the championship ring he received when he played on the winning team for Georgetown University.*fn1 In addition, although Mr. Ewing did not realize it at the time, one of the items that had been taken from his home was a book distributed to the players and staff of the New York Knicks which listed the players' names, addresses and telephone numbers.
Ten days after this burglary, Patrolman John Rodriguez of the Greenwich, Connecticut, police department responded to a resident's call about a suspicious vehicle. Patrolman Rodriguez stopped the vehicle as it was heading southbound on the Merritt Parkway and spoke to the driver, Andre Wiggins. The car had a New Jersey license plate and was registered to Christopher Wright. Mr. Wiggins gave permission to search the car. On the center console was a sheet of paper bearing the name "Herb" and a street address and telephone number. Mr. Wiggins was permitted to leave. Subsequent investigation revealed that the address and telephone number were for Herb Williams, a teammate of Patrick Ewing.
Later that evening, Patrolman Rodriguez responded to the Merritt Parkway where a Connecticut state trooper had stopped two black males walking northbound. The two identified themselves as Calvin Parish and Christopher Wright. The two men asked for a ride to police headquarters so they could arrange a ride home and the police obliged. Before the men departed, the police took their picture. Later investigation revealed that Christopher Wright was in fact Daniel Gatson.
The efforts by the police to solve the crime were not immediately successful. The two vehicles were recovered the following month in a parking garage in New York City. The attendants were unable to provide any description of who left the vehicles other than that they were two black males.
Some five years later, in 2004, the police learned that one of the latent fingerprints recovered from the Ewing home matched the prints of Alize Bethune, who was then in custody in Essex County. Members of the Bergen County Prosecutor's Office and the Englewood Cliffs Police Department interviewed Bethune. Confronted with the fingerprint match, Bethune confessed his involvement in the burglary. Bethune said that he had been a friend of defendant's for several years when he received a telephone call from him on the evening of September 17, 1999, asking that Bethune pick him up near the George Washington Bridge in Fort Lee. Defendant directed Bethune to a nearby Staples parking lot where defendant picked up another car and told Bethune to follow him. They drove to Englewood Cliffs, and defendant parked his car and got into Bethune's. They then drove to a house and backed into the driveway. The garage door opened and the two men walked into the garage and then into the house. Bethune said another man was present and that both defendant and the other man wore ski masks and gloves. He said that the men placed some pillowcases in the trunk of his car and that defendant and the other man then drove the Mercedes and the Navigator and Bethune followed them to a parking garage in New York City where they left the vehicles and got into Bethune's car. Bethune then drove them to the home of defendant's grandmother, where the two men got out and retrieved the pillowcases. Before leaving, defendant gave Bethune $100.
Although defendant and Bethune had been friends for some time, they had a falling out in 2000, which led to a complete severing of their relationship. The record does not make clear what led to the rupture, only that it occurred.
Bethune was interviewed twice by the police with respect to his involvement in burglarizing Mr. Ewing's home. During the second interview, he was shown a photo array from which he selected defendant's picture.
Bethune was indicted, together with defendant, for this incident. Bethune eventually negotiated a plea bargain under which he pled guilty to all six counts of the indictment with the understanding that the maximum sentence he would receive would be five years in prison and that he would testify at defendant's trial. He admitted that in light of his extensive criminal record (he had at least thirteen prior indictable convictions and multiple aliases), he was, absent the plea bargain, subject to being sentenced to an extended term.
N.J.S.A. 2C:44-3(a). He acknowledged that if he were to be sentenced to an extended term, he could receive a sentence in ...