On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-12-02010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 20, 2010
Before Judges Cuff, Sapp-Peterson and Fasciale.
Defendant, Anthony J. Pasqualini, appeals from an April 20, 2009 judgment of conviction of third-degree theft of movable property, N.J.S.A. 2C:20-3 (Count One); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (Count Two). At sentencing, the judge merged Count One, theft of movable property, into Count Two, receiving stolen property, and sentenced defendant to five years in prison with two and one half years of parole ineligibility.*fn1 The judge imposed restitution in the amount of $18,430 and imposed the appropriate fines and penalties. Under the circumstances of this case, defendant cannot be convicted as the thief and the receiver of stolen goods. We, therefore, vacate the receiving stolen property conviction, but affirm in all other respects.
GWS Contractors (GWS) employed defendant to drive a truck and perform general labor in its business of removing oil tanks and spills on residential properties. GWS used steel beams, varying anywhere between twelve and fifty feet in length, to support the foundation of a house when it removed contaminated soil. The steel beams weighed several thousand pounds and could only be moved using excavation equipment. GWS maintained an inventory of twenty-five steel beams and stacked them behind a dumpster on its property.
On March 5, 2008, a former employee notified Brian Taylor, a GWS foreman, that the steel beam inventory looked low. Taylor inspected the inventory and noticed that some of the beams were missing. Taylor notified Eric Davis, a co-owner of GWS, and Davis verified that twelve steel beams between twelve and fifty-feet in length were missing. Davis estimated the fair market value of the missing beams to be $18,275.
Davis' wife, the other GWS co-owner, contacted Paul Gulgun*fn2 and inquired if he had any information about the missing steel beams. Gulgun lived next to the GWS property. Gulgun reported that a few days before March 5 he heard loud banging in the rear storage area and noticed a GWS truck; however, Gulgun did not see anyone.
Taylor called defendant and accused him of stealing the beams. At first, defendant denied any wrongdoing, but when Taylor stated that Gulgun saw him loading the beams, defendant asked if he could call Taylor later. Defendant called Taylor five minutes later and - after Taylor repeated to defendant that Gulgun had seen him - defendant admitted he had stolen the steel beams. Defendant refused to tell Taylor on the phone where he would find the missing material. Defendant requested Taylor meet him at a Home Depot parking lot to discuss where he took the beams. Taylor called the police before he left to meet defendant.
Defendant met Taylor, told him that he took the steel beams to Blewett Scrap Metal (Blewett), and apologized. Taylor told defendant to return the GWS truck he had been driving that night. Before they left the Home Depot lot, Taylor stated, "I'm sorry it had to turn out this way." Defendant responded, "not half as sorry as I am." They both drove separately back to the GWS site. On the way back to the GWS site, defendant called Taylor and they talked on their cell phones. Defendant stated he stole the steel beams because "you know, times are hard . . . you know how it is." Taylor terminated defendant that night. The next day defendant emailed Davis' wife and said that he "REGRETT[ED] what ha[s] been done." He also stated that "[p]lease I BEG again not to pursue any charges legally."
Taylor paid Blewett $560 and retrieved four of the stolen steel beams. The other beams were no longer at Blewett. Taylor identified the four beams immediately because they had the initials "GWS" welded on them or had GWS special paint markings.
Defendant did not testify at trial, instead relying on his statement to detective James Ryan that was introduced into evidence. Defendant maintained that Davis authorized him to move the steel beams and clean up the yard on his own time. During the statement to Detective Ryan, defendant indicated that he could produce "mitigating factors" and that there were other people who could verify his account. Detective Ryan waited three weeks, called defendant, asked him "where are we," and defendant remained silent.
On appeal, defendant raises the following points:
THE DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY THE STATE'S EVIDENCE AND ARGUMENT THAT THE DEFENDANT WAS MOTIVATED TO COMMIT THE THEFT BECAUSE HE WAS DESTITUTE (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S USE OF CHARACTER ASSASSINATION TO PROVE HIS CASE (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE WITHOUT A PROPER LIMITING INSTRUCTION (Partially Raised Below)
THE INSTRUCTION ON THE LAW OF THEFT AND RECEIVING STOLEN PROPERTY CREATED A FIREWALL, COMPELLING JURORS TO CONVICT THE DEFENDANT ONCE THEY FOUND THAT THE STATE PROVED THE ELEMENTS OF THE OFFENSE, RATHER THAN INFORMING JURORS THAT IF THE STATE PROVED THOSE ELEMENTS THEY SHOULD THEN CONSIDER CLAIM OF RIGHT DEFENSE (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CONFESSIONS (Not Raised Below)
THE TRIAL COURT ERRED BY ADMITTING HEARSAY EVIDENCE (Partially Raised Below)
THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED POINT VIII
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS (Partially Raised Below)