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Interest of M.M.

August 12, 2011

INTEREST OF M.M., A JUVENILE.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-2429-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

STATE OF NEW JERSEY IN THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 4, 2011

Before Judges Alvarez and Ostrer.

Marc Miller*fn1 appeals from a juvenile adjudication of delinquency. The Family Part determined that Miller committed a theft of jewelry valued between $500 and $75,000, contrary to N.J.S.A. 2C:20-3. On December 3, 2009, after the juvenile waived preparation of a pre-disposition report, the court sentenced Marc to one year probation, a substance abuse evaluation, mandatory fees and penalties. As a condition of probation, Marc was ordered to pay the victim's insurer $5000 in restitution. In a later order, the court set a payment schedule of $50 a month for one year, and $100 a month thereafter.

We briefly summarize the salient facts supported by the trial evidence. The stolen jewelry was the property of Marilyn Starr, the grandmother of Marc's former girlfriend, Emily Caine (Emily). The Starr household included Starr and her husband, their daughter Rochelle Caine (Caine) and her husband, and Emily and her sibling. Emily and Marc were friends as pre-teens and had dated for two years before breaking up in September 2008. Thereafter, until October 2008, Marc was still often present in the Starr home. Starr treated him as a "grandson."

During the period when the jewelry was found to be missing, Marc enjoyed unfettered access to the victim's bedroom area where she stored her jewelry, and the kitchen, where she often removed her rings and placed them in a cup while cooking. Marc had expressed curiosity about the jewelry and discussed its value with the victim. Barry Chalmers, a friend of Marc's, testified that Marc asked him to take him to a pawnshop to pawn items of jewelry. Barry admitted to Caine that he had taken Marc to the pawnshop and was able to describe some of the pieces of jewelry. Caine also testified that Marc apologized to her for claiming that Barry stole the jewelry.

Police initially presented the pawnshop owner with photographs of Marc, and no one else.*fn2 Without disclosing the purpose of his inquiry, the officer asked the owner if he recognized the person depicted. The shop owner identified Marc as someone who previously had been to his shop on more than one occasion to sell jewelry. In a later interview about Marc, the police officer presented the shop owner with a drawing of a bracelet decorated with a horse image, one of the distinctive items that Starr claimed was stolen. The officer asked the shop owner if he recalled seeing a bracelet like that. The shop owner recalled that Marc had sold such a bracelet.

Marc raises the following points on appeal:

POINT I

THE LOWER COURT ERRED IN ADMITTING EVIDENCE OF THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT IDENTIFICATION OF DEFENDANT BY ELISHA REESE AND THE RESULTING TAINTED IN-COURT IDENTIFICATION, THEREBY DENYING DEFENDANT DUE PROCESS AND A FAIR TRIAL. (U.S. ...


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