On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-05-1660.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2009
Before Judges Cuff and Waugh.
Defendant James L. Banks appeals his conviction for third- degree receiving stolen property contrary to N.J.S.A. 2C:20-7, as well as the resulting extended-term sentence of imprisonment for eight years with a three-year period of parole ineligibility. We affirm.
We discern the following facts from the record. On March 12, 2006, Newark Police Officer Angelo Romero, who was working undercover, observed a white 1998 Dodge Ram van disregard a stop sign at the intersection of South Street and Orchard Street in Newark. Romero ascertained that the van had been reported stolen two days earlier.
Romero followed the van for approximately four blocks until it came to a complete stop at 46 Tichenor Street in Newark. Romero identified Banks as the van's driver and sole occupant. Banks "double parked" the van, left the engine running, and walked towards 46 Tichenor Street. Romero and two other officers approached Banks, instructed him "to get down," and placed him under arrest. In response to a question about what he was doing in the area, Banks responded he was there to pick up a friend. Romero described the van's ignition as "defeated" or damaged, and testified that there were no keys in the ignition.
At trial, Romero testified that Banks admitted that he knew the car was stolen when questioned at the police station. However, that admission was not mentioned in Romero's contemporaneous police report. Banks testified that he had borrowed the van on March 12 from someone known to him solely as "Jason." He denied knowing the van was stolen, but admitted that he knew the vehicle's ignition was missing at the time he took the van from Jason. He also testified he had been unable to turn the van off while using it. Banks conceded that he did not have the van's insurance card or vehicle registration card at the time of his arrest.
The jury found Banks guilty. At Banks's sentencing on November 17, 2006, the State moved for an extended term of incarceration pursuant to N.J.S.A. 2C:44-3(a), based upon Banks's extensive criminal record. The motion was granted. Banks was sentenced to an eight-year term of incarceration, with a three-year period of parole ineligibility. This appeal followed.
On appeal, Banks raises the following issues:
POINT I: THE JUDGE'S EXAMPLE OF HOW THE JURY SHOULD TREAT A PRIOR INCONSISTENT STATEMENT FOCUSED ENTIRELY ON THE TESTIMONY OF OFFICER ROMERO AND DID NOT ADDRESS AT ALL THE FACT THAT MR. BANKS WAS ALLEGED TO HAVE MADE A STATEMENT TO POLICE INCONSISTENT WITH HIS TRIAL TESTIMONY. (Not raised Below)
POINT II: DEFENDANT'S EXTENDED TERM SENTENCE IS MANIFESTLY EXCESSIVE AND MUST BE REMANDED.
We first address the issue raised with respect to the jury charge. Proper jury instructions are essential to a fair trial. State v. Green, 86 N.J. 281, 287-88 (1981). In assessing the nature of the jury charge, an appellate court is to examine the entire charge and the totality of the circumstances to see whether it was ambiguous, misleading, or misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005).
In this case, the trial judge specifically asked defense counsel whether he wanted a charge with respect to the inconsistency between Romero's report, which made no mention of a statement by Banks that he knew the van was stolen, and his trial testimony, in which he asserted that Banks had made such a statement.
THE COURT: [T]here's an omission in the police report, as opposed to what the witness has said on the ...