On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0605.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Yannotti and Chambers.
Defendant Charles A. Davis was tried before and jury and found guilty of theft by unlawful taking, in violation of N.J.S.A. 2C:20-3. He was sentenced to nine years of incarceration, with a four-year period of parole ineligibility, which was to be served consecutively to a sentence defendant was then serving. Defendant appeals from the judgment of conviction dated March 17, 2008. We affirm.
The appeal arises from the following facts. Defendant was charged under Indictment 06-06-0605 with second degree robbery, N.J.S.A. 2C:15-1 (count one); third degree burglary, N.J.S.A. 2C:18-2 (count two); third degree theft by unlawful taking, N.J.S.A. 2C:20-3 (count three); and third degree receiving stolen property, N.J.S.A. 2C:20-7 (count four). Thereafter, counts two, three and four were dismissed.
Defendant moved to suppress the statement he provided to the police. The court denied the motion, because the issue had previously been raised, argued and litigated before the Law Division in Middlesex County, and the court had determined that defendant provided his statement after the knowing and voluntary waiver of his constitutional rights. Defendant then was tried on the charge in count one.
At the trial, the State presented testimony from Kathryn Olsen (Olsen), who stated that on April 10, 2006, she was in the parking lot of a department store in Westfield, New Jersey. Olsen testified that she saw an older woman walking to her car. She then saw the woman grabbing her pocketbook from a person in a car.
Olsen said that she briefly observed the person in the car. Olsen stated that the person was a "dark-skinned individual." She described the person as "slight, not muscular." She said that he weighed "maybe 165 pounds, [or] 150 [pounds]." Olsen also stated that the vehicle was "a small red compact car." Olsen called 9-1-1 from her cell phone and reported that a robbery was taking place.
Olsen gave the person taking the 9-1-1 call the license plate number of the car. Olsen said that the car "took off" and "headed out of the parking lot." She testified that there were two individuals in the red car. Olsen went over to the woman. According to Olsen, the woman "was a little shaken up[.]" She told Olsen that someone had stolen her pocketbook. The woman had a cut on her hand, which was bleeding. Olsen remained with the woman until the police arrived.
On cross examination, Olsen stated that she could not definitively recognize the two individuals who were in the red car. Olsen acknowledged that, in the statement that she gave to the police after the incident, she said that she did not see "any visible injuries[.]" On redirect, Olsen said that, when the police asked her about the woman's injuries, she had forgotten to mention the cut on the woman's finger.
Marguerite Tristram (Tristram), testified that on April 10, 2006, she was shopping at the department store in Westfield. Tristram was eighty-two-years old. She was alone. Tristram remained in the store about an hour. She exited the store shortly after noon and walked to her car, which was parked in an angled parking space facing the railroad tracks. As Tristram approached her car, she pressed the electronic device that opens the car door. Tristram was holding a bag of items she had purchased in the store. Her pocketbook was on her left shoulder.
Tristram testified that she felt someone "tugging" on her pocketbook. She turned around and "saw somebody pulling [her] pocketbook off [her] arm." Tristram was face-to-face with the perpetrator. She asked him what he was doing but he did not respond. She said that the perpetrator was "a good looking black man, [with an] athletic build, [and he was] about six feet tall." She thought the man was about twenty-years old.
Tristram tried to hold onto her pocketbook but could not do so. The perpetrator took her pocketbook and walked quickly back to his car, which was about two spaces away from Tristram's car. Tristram tried to catch the man and retrieve her pocketbook. She was angry. She said the perpetrator's car was "dark red[.]"
Tristram stated that the window of the red car was open. Tristram reached into the car. She told the perpetrator that he should give the pocketbook back to her. She testified that she was yelling "robber, thief, whatever [she] could think of[.]" Tristram grabbed the man's clothes and ripped his shirt.
Tristram stated that eventually her pocketbook was returned to her. The money had been taken out of the wallet but the wallet was put back in the purse. Tristram's pocketbook also had contained an envelope with her church offering in it. The money in the envelope had been taken. A pair of eyeglasses also was taken.
Tristram also testified that after the incident, she did not know whether she had been injured but there was blood on her jacket. She said that she had been wearing a ring on her finger and she believed that, when she grabbed the perpetrator's shirt, the ring cut her finger and she "brushed [her] hand" on her jacket. The blood was on "that side of [her] jacket." Tristram added that, when she got home, she observed black and blue marks on both of her arms. She testified that she did not have any cuts or bruises on her body before she went to the parking lot of the department store.
On cross examination, Tristram stated that she did not recognize defendant as the person who took her pocketbook. She said that she did not believe defendant was the person involved. She stated that the perpetrator looked different. Tristram additionally testified that the man did not have hair on his face like defendant. She added that defendant also looked "a little thinner than he did then." She also said that the person who took her purse appeared to be more muscular.
Detective Joseph Costanzo (Costanzo) of the Westfield Police Department (WPD) testified that on April 10, 2006, he responded to the parking lot of the department store in Westfield and took statements from the witnesses. He was given a description of the perpetrator's car and its license plate number. Costanzo said that on April 13, 2006, he received a call from the Edison Police Department (EPD). The Edison police had detained a burgundy Honda, with a license plate number that matched the plate number of the car seen during the April 10, 2006 incident at the parking lot in Westfield.
Costanzo was informed that the Edison police had two individuals in custody, specifically defendant and Bilal Muslim (Muslim). Costanzo went to the EDP. There, he saw defendant who he described as being about six feet in height, with a slender build, dark hair and dark eyes. Costanzo identified defendant in court as the individual who was in custody at the EPD.
Costanzo spoke with defendant and Muslim concerning the incident in the parking lot in Westfield on April 10, 2006. Detective Alan Sciarrillo (Sciarrillo) of the EPD read defendant his Miranda*fn1 warnings. Defendant said that he understood them and signed the Miranda waiver forms. Defendant agreed to speak with Costanzo about the incident. Detective Lieutenant Frank Burnell (Burnell) from the WPD also was present.
Defendant gave the detectives a formal statement, which was audiotaped. Defendant acknowledged that on April 10, 2006, he was with Muslim in a burgundy Honda. Defendant was driving and Muslim was in the front passenger seat. Muslim told him to pull into the parking lot of the department store and said that they needed "one of those[,]" meaning "[a] bag, a pocketbook [or] a purse."
Defendant got out of the car and grabbed a pocketbook from an older, white lady, who was walking to her car. Defendant said that he "[j]umped" into the car. The lady reached into the window of the car, grabbed defendant's shirt and ripped it. He started the car and drove off. Muslim went through the lady's pocketbook, took the money, and gave defendant some of the money.
The jury found defendant not guilty of robbery, but guilty of third degree theft by unlawful taking, a lesser-included offense. The court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3. On March 17, 2008, defendant was sentenced to a nine-year term of incarceration, with a four-year period of parole ineligibility. The court ordered that ...