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State v. Powell

February 23, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HAROLD B. POWELL, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-08-0808.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 11, 2010

Before Judges Lisa and Baxter.

Defendant was charged in a six-count indictment as follows:

(1) third-degree receiving stolen property (a motor vehicle), N.J.S.A. 2C:20-7a; (2) fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10b; (3) fourth-degree making false statements in procuring a credit card, N.J.S.A. 2C:21-6b; (4) third-degree unlawful use of a credit card, N.J.S.A. 2C:21-6d(2); (5) third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h; and (6) third-degree theft by deception, N.J.S.A. 2C:20-4. At the end of the State's case, the court granted defendant's motion for acquittal as to counts one and two. The jury convicted defendant of the remaining counts. He was sentenced to an aggregate term of three years probation, conditioned upon serving 180 days in the county jail. Defendant raises the following argument on appeal:

THE ADMISSION OF IRRELEVANT HIGHLY PREJUDICIAL EVIDENCE ABOUT DEFENDANT'S RELATIONSHIP WITH [J.U.] COMBINED WITH THE PROSECUTOR'S COMMENT IN HIS OPENING STATEMENT THAT DEFENDANT WAS "SOMEWHAT SLICK AND SLIPPERY" DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL (Not raised below).

We reject this argument and affirm.

In June 2005, defendant, who had been living in Georgia, met for the first time in person J.U., who lived in Hamilton Township, with a post office address of 1717 Liberty Street in Trenton. Defendant and J.U. had previously struck up a relationship over the internet. The relationship was romantic and defendant moved into J.U.'s home upon his arrival in New Jersey. He brought with him his fifteen-month-old son. J.U.'s three children also lived in the household. At the time of trial, three years later, J.U.'s children were fifteen, fourteen and eleven years old.

Defendant told J.U. he had two children and was divorced. He said he was relocating to New Jersey for employment purposes. In the several days prior to August 22, 2005, J.U. learned that defendant was still legally married, that his wife had their second child in July 2005, that his wife was not in Georgia, but living in a shelter in New Jersey, and defendant had been visiting his wife and newborn child on weekends. These revelations led to discord in the relationship. The prosecutor elicited this information from J.U. without objection.

Another incident occurred during these days that further contributed to J.U.'s ill feeling toward defendant. Two or three days prior to August 22, defendant asked J.U. to pick up a Western Union wire transfer of money. When she asked why, defendant said he could not find his identification. She refused "because if he was having a Western Union sent to him, why would I have to go pick it up." On the morning of August 22, 2005, Western Union received a request to change the payee from J.U. to defendant. The amount of the Western Union transaction was $1700. That sum was secured by a Citibank credit card that we will soon discuss. The money was picked up on September 10, 2005 at a Superfresh store in Hamilton.

On the morning of August 22, 2005, after defendant left for work, these events "just festered in [J.U.'s] mind" and she called defendant at work "telling him to come and get his belongings and get out of [her] house." J.U. was concerned that she might become confrontational toward defendant when he came home. She was a corrections officer and did not want any incident to occur that might jeopardize her employment. She therefore called the police and requested that they come to her home to monitor the events.

With defendant present, the police observed a vehicle represented to be defendant's, which bore a temporary license plate, apparently from Georgia. The police believed the plate had been altered. They made some inquires and received information that the vehicle had been stolen. They placed defendant under arrest for receiving stolen property with respect to the vehicle.

J.U. then led the police to some bins in which she had placed defendant's belongings. Included were various documents, including telephone bills and credit card receipts. Included were a Citibank credit card in the name of "Paul Dios" and a telephone bill bearing a slightly different name, "Paul Dinos," with an address of 1717 Liberty Street in Trenton. Further investigation revealed that a Georgia resident named Paul Dinos, who had never been in New Jersey and had never authorized anyone to use his identifying information, was the victim of identity theft. Various purchases had been made in New Jersey using a credit card that had been obtained by "Paul Dios," using the social security number and birth date of "Paul Dinos," and ...


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