On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 07-05-0207.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010
Before Judges Cuff and Fisher.
After being convicted by a jury of two counts of third-degree burglary and two counts of third-degree theft, the trial judge sentenced defendant to four concurrent nine-year extended terms of imprisonment. In this appeal, defendant argues: the judge's jury instructions were plainly erroneous; his trial counsel was ineffective in failing to move to suppress evidence; the sentence was excessive; and the evidence was inadequate to support his conviction. With the exception of the judge's imposition of multiple extended terms, we find no error and affirm.
The evidence adduced at trial reveals that in the early morning hours of December 7, 2006, two Franklin Township Police officers observed the movements of a Ford flatbed tow truck. One officer mentioned to the other that he found this a "weird" sight considering the truck was carrying two lawn tractors in the middle of the night in the winter; both officers were also aware of "a lot of burglaries of... snow plows, a lot of equipment" in the area. Consequently, the officers activated their overhead lights; the truck abruptly stopped and the driver exited and fled into the nearby woods. The officers were unable to apprehend the driver but found in the truck a substance suspected of being heroin, as well as a glove and a screwdriver, which they presumed were used to pop the ignition of the truck. The following morning, police recovered a cellphone, which had been found in the backyard of a home near where the truck stopped and the driver fled. According to one officer, the cellphone "was just laying in the backyard... [and] was still operating also."
That morning, a State Police detective was investigating the theft of two lawn tractors from Powerco, Inc., in Clinton. At that time, the detective also learned a Ford flatbed tow truck had also been stolen the night before from a neighboring business known as Auto Haas. Upon running the stolen truck's VIN number through a database used by law enforcement, the detective learned that Franklin Township police had run the plate number of the same truck. The detective consulted with the Franklin Township police and eventually retrieved the cellphone they obtained, tracing it back to defendant. The detective also visited defendant's residence and observed parked in the driveway a gray Chevrolet Blazer, which was registered to defendant's wife and Brian Shafer.*fn1
A few weeks later, the detective obtained a statement from Shafer in which he acknowledged his and defendant's participation in the thefts from Powerco and Auto Haas. Shafer entered into a favorable plea agreement, which included his agreement to testify at defendant's trial. Defendant was indicted and, after a three-day trial, convicted of the four counts charged; he was sentenced to four concurrent nine-year extended terms.
In this appeal, defendant presents the following arguments:
I. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY ON A DIFFERENT FACTUAL SCENARIO FOR THE BURGLARY CHARGES THAN WHAT WAS CHARGED IN THE INDICTMENT.
II. TRIAL COUNSEL'S FAILURE TO MOVE FOR SUPPRESSION OF EVIDENCE DENIED DEFENDANT EFFECTIVE ASSISTANCE OF COUNSEL.
III. THE DEFENDANT'S SENTENCE IS EXCESSIVE.
A. THE SENTENCING COURT ERRED BY IMPOSING AN EXTENDED TERM ON MULTIPLE ...