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State v. King

March 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FREDERICK KING, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1251.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 18, 2009

Before Judges Lyons and Waugh.

Defendant, Frederick King, appeals his conviction after trial by jury on both counts of an indictment charging him with theft by unlawful taking of an automobile, contrary to N.J.S.A. 2C:20-3 (count one), and burglary, contrary to N.J.S.A. 2C:18-2 (count two). Upon review of the facts and the applicable law, we affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

On April 19, 2007, at about 3:00 p.m., Jersey City Police Officers James Crecco and Eric Infantez, who were engaged in plainclothes surveillance in an unmarked police vehicle on Tonnele Avenue, observed defendant, whom they recognized from previous arrests, in a used car lot. In that area, Tonnele Avenue is a divided four lane highway, lined with several businesses and used car dealerships. The officers were across Tonnele Avenue from defendant when they first observed him.

Officer Crecco watched as defendant walked around the used car lot and examined the vehicles. When he observed defendant walk to another dealership, Officer Crecco exited the unmarked police vehicle and followed defendant on foot, matching his pace from across the road. Officer Crecco estimated that he was approximately twenty to thirty feet away from defendant, with Tonnele Avenue separating them. Officer Infantez followed Officer Crecco in the police vehicle, driving slowing along the shoulder of the road. Both officers watched defendant as he looked at several of the cars on the lot.

When defendant was eventually approached by a salesperson, he left the dealership's lot and walked by an auto paint and repair shop. He then turned around and entered the repair shop's lot, where he approached a gold 1983 Buick Electra. Officer Crecco observed as defendant opened the car's door, sat in the front seat, ducked down under the dashboard, popped back up and then started the car. Defendant drove the vehicle off the repair shop's lot and headed north on Tonnele Avenue.

Officer Crecco immediately broadcasted the car's license plate number over his police radio and attempted to cross Tonnele Avenue on foot in order to get to the repair shop. He was unsuccessful because of the high volume of traffic. Officer Infantez, who was still driving the police vehicle along the shoulder on the road, was likewise unable to turn the police car around and follow defendant. Both officers lost sight of the Buick. A warrant was issued for defendant's arrest.

Later that day, officers located the Buick parked on Orient Avenue in Jersey City, approximately one mile away from the repair shop on Tonnele Avenue. At approximately 7:00 p.m., Sergeant Michael Kenny arrived and parked his police vehicle two cars away from the Buick. Based on information in the warrant, Sergeant Kenny knew that defendant lived on Orient Avenue.

The police placed a telephone call to the number listed for defendant's address, and based on that call, determined that defendant was inside. Sergeant Kenny positioned officers in the backyard of defendant's home and the adjacent properties. He and another officer then knocked on defendant's front door and a woman inside asked who it was. The officers responded that it was the police and told her that they needed to speak to her. When she opened the front door, Sergeant Kenny, looking into the house, observed defendant opening the back door in an attempt to leave. Sergeant Kenny called defendant by name, saying "Freddy, come here, I need to talk to you." Defendant complied and Sergeant Kenny placed him under arrest.

Sergeant Kenny then searched defendant and recovered car keys from his right front pocket. The police used those keys to start the engine of the Buick, which was taken to the police station.

On August 2, 2007, a Hudson County Grand Jury returned Indictment No. 07-08-1251 charging defendant with theft by unlawful taking of an automobile, contrary to N.J.S.A. 2C:20-3 (count one), and burglary, contrary to N.J.S.A. 2C:18-2 (count two). After a three day trial, on December 6, 2007, the jury found defendant guilty on both counts. The trial court sentenced defendant on January 18, 2008, to an extended term of ten years imprisonment, with five years of parole ineligibility on count one and a concurrent term of five years with two and one-half years of parole ineligibly on count two. Defendant now appeals and presents the following arguments for our consideration:

POINT ONE

DEFENDANT, WHO DID NOT TESTIFY, WAS DENIED HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL BECAUSE THE JURY HEARD, OVER AND OVER AGAIN, THAT THE POLICE OFFICERS WHO TESTIFIED IN THIS CASE KNEW DEFENDANT PRIOR TO THE WITHIN INCIDENT, AND THE JURY WAS LEFT WITH THE INESCAPABLE CONCLUSION THAT THE OFFICERS WATCHED AND FOLLOWED DEFENDANT BECAUSE THEY KNEW HE ...


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