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State v. Hunter

July 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRED A. HUNTER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-04-0444.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 12, 2010

Before Judges Baxter and Alvarez.

Tried by a jury, defendant was found guilty of multiple offenses under Indictment No. 06-04-0444. On January 18, 2008, he was sentenced on that indictment, as well as an open plea on one count of Indictment No. 06-06-0794, to an aggregate term of fifteen years subject to seven and one-half years of parole ineligibility. Defendant now appeals only as relates to Indictment No. 06-04-0444. We affirm, except that we remand for merger of counts five and six.

Defendant was convicted on Indictment No. 06-04-0444 of the following: fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10b (count one); third-degree burglary, N.J.S.A. 2C:18-2a(1) (count two); a lesser-included fourth-degree theft by unlawful taking or disposition, N.J.S.A. 2C:20-3a (count three); third-degree forgery, N.J.S.A. 2C:21-1a(2) (count four); third-degree uttering of a forged instrument, N.J.S.A. 2C:21-1a(3) (count five); and third-degree theft by deception, N.J.S.A. 2C:20-4a (count six).

Defendant was sentenced to five years imprisonment subject to two and one-half years of parole ineligibility on count two. Count five also resulted in five years imprisonment subject to two and one-half years of parole ineligibility, consecutive to count two. All other sentences on that indictment were made concurrent to these two counts. Counts one and three each resulted in a sentence of eighteen months imprisonment. Defendant was sentenced to imprisonment for five years, subject to two and one-half years of parole ineligibility on count six. Because only counts two and five were sentenced consecutively, the aggregate sentence for this indictment was thus ten years, subject to five years of parole ineligibility.

Defendant's open plea on Indictment No. 06-06-0794 was to count one, third-degree burglary, N.J.S.A. 2C:18-2a(1).*fn1 On that count, the trial court sentenced defendant to five years of imprisonment, consecutive to Indictment No. 06-04-0444 and subject to two and one-half years parole ineligibility. The aggregate sentence was therefore fifteen years subject to seven and one-half years of parole ineligibility. Appropriate fines and penalties were also imposed.

The following facts were developed at trial. At approximately 5:15 p.m. on December 4, 2005, Laishawn Laborde, then employed as a security officer, discovered an intruder lying on a couch in a company trailer as he patrolled a Digz Construction site. The man explained his presence by claiming he was a Digz employee. As a result, Laborde called his supervisor, who directed him to escort the intruder from the premises. The man had identified himself by the name "Saleem," defendant's nickname when he worked at Digz Construction before his termination a few days earlier. Laborde described the trespasser as an African-American man wearing a black jacket.

The following Monday morning, December 5, Jose Figuera was driving on Route 206 at approximately 8:00 a.m. on his way to work at VIP Construction, next door to the Digz site. Much to his surprise, he saw the company's backhoe on Route 206 traveling in the opposite lane. Figuera, who was the VIP Construction foreman, had not given anyone permission to operate the backhoe and was the only person authorized to do so. He turned his car around as quickly as he could given traffic conditions and tried to follow. Figuera eventually found the backhoe parked behind a liquor store. After verifying that the backhoe belonged to VIP Construction, he reported its whereabouts. Figuera observed that the man driving the backhoe was an African-American wearing a black jacket.

Brian Pesce, a detective sergeant with the Township of Bordentown, testified that he was the first detective to arrive at the scene. A business known as One Stop Check Cashing (One Stop) is located on the same strip mall as the liquor store behind which the backhoe was parked. When Pesce arrived, he had already been informed that a duffle bag filled with approximately $600 worth of items, including walkie talkies and cell phones, as well as a payroll check in the name of Jimmy Avery, had been stolen from the trailer at Digz Construction. As Pesce completed his processing of the backhoe and its contents, a man matching the description of the driver walked away from him southbound on Route 206. Pesce stopped the individual, later identified as defendant, who explained that he had taken a bus from Philadelphia to Camden, gone by train from Camden to Bordentown City, and then walked approximately two miles from Bordentown City, to cash a check. When Pesce asked defendant why he had not cashed the check in Philadelphia, he had no answer. Defendant's hands were shaking, he stammered when answering Pesce's questions, and he repeatedly put his hands in his pockets. Pesce testified that defendant appeared "very nervous."

As a result, Pesce patted defendant down and found a screwdriver in defendant's right pocket. Pesce walked into the check cashing store to verify defendant's story and obtained the $744.77 payroll check that defendant had just cashed. The check was endorsed by a signature purporting to be that of Avery, whom Pesce knew "from prior contacts in the community." Accordingly, Pesce took defendant into custody and gave him his Miranda*fn2

warnings.

Defendant admitted taking the check from the Digz Construction trailer, forging Avery's signature, and cashing it at One Stop. He denied any knowledge of the duffle bag or other items recovered from the rear of the backhoe, however. When Pesce told him that he "was amazed" that defendant "commandeered [a] backhoe and drove it up" Route 206 to a check cashing store, defendant "just basically ...


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