On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-06-2299.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Parrillo and Lihotz.
A Camden County grand jury filed Indictment No. 06-06-2299, charging defendant Donald T. Rivers with third-degree theft by failure to make required disposition of property received, N.J.S.A. 2C:20-9. After trial, the jury returned a guilty verdict. The court imposed a four-year probationary sentence and required defendant to perform 100 hours of community service, twenty-five hours each year. Applicable fines and penalties were imposed along with restitution of $9404 payable at a rate of $210 per month to Hertz Car Rental.
On appeal, defendant argues:
AS THERE WAS NO RATIONAL BASIS FOR THE CHARGE REGARDING A MONETARY THEFT VERSUS FAILURE TO DISPOSE OF THE VEHICLE AS PER THE RENTAL AGREEMENT, AND AS THE STATE PRESENTED NO EVIDENCE IN SUPPORT OF THIS CHARGE, A JUDGMENT OF ACQUITTAL MUST BE ENTERED AS DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED. (Not Raised Below).
After carefully analyzing the record in light of the written arguments advanced, we affirm.
These are the facts presented to the jury. On December 17, 2005, defendant executed a one-day rental agreement to lease a 2005 Chevy Tahoe from a Hertz Car Rental (Hertz) agency adjacent to the Philadelphia Airport. The one-day rental cost was $94; thereafter, the daily cost was $166.23. The rental period is stated in the rental contract. If a customer desires to extend the rental period, a new rental agreement must be executed.
Frederick Gaio, an employee in the vehicle control department, explained the procedure Hertz follows when a vehicle is not returned, as required by the contract. First, the customer is called. When that effort fails, correspondence is sent requesting return of the vehicle. Two certified letters were sent to defendant at the Philadelphia address he provided on the rental contract. On February 17, Hertz notified the Philadelphia Police Department that the vehicle, valued at $31,634, was stolen.
On April 7, 2006, Cherry Hill Police Department Patrolman Charles Smith observed a Chevy Tahoe ignore a stop sign. Smith followed the vehicle and checked its registration in the mobile data computer. Smith learned the vehicle was stolen and, after notifying back-up, initialed a felony stop. As the driver of the reportedly stolen vehicle, defendant was arrested along with Dana Rivers (Rivers), his wife, who was a passenger.
Rivers did not execute the initial rental agreement but testified that on December 19, 2005, defendant had asked her to extend the lease for six months. She did not follow through on his request because she and defendant had a "huge altercation." Rivers never told defendant she had not extended the rental agreement and believed Hertz would come and take the vehicle. Thereafter, Rivers assumed defendant extended the rental agreement himself as his credit card was charged for fourteen days following the initial rental period.
At the close of evidence, the court instructed the jury on each element of the offense charged. Noting the State has the burden to prove theft, the trial judge stated:
Now members of the jury, the State also must prove to you beyond a reasonable doubt -- if you find the defendant guilty of the crime of theft, the State has to prove to you also beyond a reasonable ...