On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hunterdon County, Indictment No. 05-06-00271.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2010
Before Judges Rodríguez and Reisner.
Albert Bianco appeals from his conviction, following a jury trial, for third degree burglary, N.J.S.A. 2C:18-2a(1); third degree theft by unlawful taking, N.J.S.A. 2C:20-3a and -2b(2)(a); and third degree forgery, N.J.S.A. 2C:21-1a(2). Defendant was not tried with his co-defendant Jessica L. Patierno. She testified for the State. The judge granted the State's motion for an extended term and imposed concurrent terms aggregating ten years with a four-year parole disqualifier. In addition to the requisite fines and penalties, the judge ordered restitution of $1,348.95. We reverse the conviction. In addition, we dispose of a motion to reduce bail pending appeal. No. M-5796-09, which is rendered moot by virtue of the vacation of the conviction.
This is a summary of the evidence. Patierno, Anthony Auriemma and Donald Phillips met while all three were in grade school. By their twenties, each was addicted to heroin and cocaine. Patierno met defendant, whom she knew as "Skeeter", around that time. They bought illegal drugs from the same drug dealer. Patierno knew, and defendant admitted to her, that he had "ripped off" mutual friends by taking money from them to buy drugs and failing to deliver the drugs.
The trial record contained evidence of several crimes, including crimes in which defendant did not participate, although Auriemma, Phillips, and Patierno did participate. That evidence is at the core of the reason for the reversal in this case.
Patierno testified that on August 27, 2004, she, Auriemma and defendant went to the Califon A&P. She tried unsuccessfully to cash a check. Defendant said they would have to break into someone's house. Defendant drove Patierno and Auriemma to the Heimowitz residence. He knocked on the front door, holding a clipboard in his hand. When no one answered, he put gloves on and climbed in a window. Auriemma entered the house when defendant opened the front door. Patierno remained in defendant's car, acting as a lookout. She saw defendant and Auriemma back out of the house carrying a television set and a mug of loose change. Then Patierno, Auriemma and defendant drove to Newark and sold the television for forty bags of heroin and a few vials of cocaine. Defendant kept $8 in cash and some of the drugs.
Patierno also testified that on the morning of August 31, 2004, she was at Auriemma's house, when defendant arrived and asked if they had any money. They had none. Defendant left the house. When he returned, he had two checkbooks belonging to Michael Santillo, and two stolen credit cards. The group destroyed the credit cards. Auriemma signed several of the checks.
Patierno also testified that defendant had cashed a check on August 27, 2004 at the Washington A&P. Her recollection was that the check probably belonged to Jackie Gilligan and was written for more money than was present in the account. Defendant was not charged with this offense.
According to Patierno, on August 31, 2004, defendant uttered a forged check for $51.99 at the Califon A&P. The check belonged to Michael Santillo. It was stolen in a burglary at the Santillo residence. Patierno and defendant planned to cash checks at various A&P stores and use the proceeds to buy heroin in Newark. According to Patierno, she and defendant went first to the Califon A&P. Defendant cashed check number 149, belonging to Santillo, in the amount of $51.99 at 3:01 p.m.
Patierno further testified that she and defendant also went to the Washington A&P on August 31. While there, she forged Santillo check number 101 and cashed it for $79.29 at 1:50 p.m. She also cashed forged check number 102 at the Washington A&P for $51.99 at 1:57 p.m.
Auriemma testified that he cashed forged Santillo check number 130 for $179.39 at the Washington A&P at 2:04 p.m. on August 31. Auriemma cashed Santillo check number 128 for $158.62 at the Clinton A&P at 9:47 p.m. on the same date. Santillo check number 108 was cashed for $22.35 at the Basking Ridge A&P at 3:47 p.m. on August 31. It is unclear who cashed the check. Phillips testified that on September ...