On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-01-00010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Fasciale.
Defendant, Antonio Ortiz, appeals from a May 29, 2009 judgment of conviction of fourth-degree credit card theft, N.J.S.A. 2C:21-6c(2)(Count One). Defendant contends that the trial judge erred by denying his motion for acquittal, and that his sentence was excessive. We disagree and affirm.
On July 11, 2008, defendant was in police headquarters for reasons unrelated to this case. While Officer Brian Foy walked him to an identification bureau room, he observed defendant stop for a few moments, adjust his clothing, fall against a wall, and throw some items toward a garbage can. Officer Foy testified that it looked like defendant "orchestrated a fall."
The items landed in the garbage can and on the floor. Officer Foy directed defendant to stand near another officer, and he retrieved several credit cards, a New Jersey driver's license, and various other cards. Jeanne Cimino's name appeared on all of these items. The day before this incident Cimino reported to the police that her wallet and credit cards had been stolen. Cimino testified at trial that she did not know defendant and never lent him the credit cards.
After conclusion of the State's case, defendant moved for a judgment of acquittal, arguing that the State failed to demonstrate that he intended to use, sell, or to transfer the credit cards to another person. The State countered that the jury could infer the requisite intent from defendant's conduct. The judge agreed with the State and denied the motion.
Defendant then testified that he found the credit cards on the side of a curb, picked them up, and planned "to do the right thing and turn them in." Defendant admitted that, while he was at police headquarters on the unrelated matter, he failed to tell the police that he had the credit cards in his possession. Defendant explained that he did not give the credit cards to the police because he forgot to do so. Defendant acknowledged that instead he attempted to throw the credit cards into a garbage can.
The judge sentenced defendant to two years of probation with 364 days in the county jail and imposed the appropriate fines and penalties.
On appeal, defendant raises the following points:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL AT THE CLOSE OF THE STATE'S CASE BECAUSE THE STATE FAILED TO PROVE ALL ELEMENTS OF THE CRIME OF CREDIT CARD THEFT, PURSUANT TO N.J.S.A. 2C:21-6 (c)(2).
POINT II THE SENTENCE IMPOSED ON DEFENDANT'S CONVICTION OF CREDIT CARD THEFT WAS MANIFESTLY EXCESSIVE AND CONSTITUTED ...