On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-04-1049.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2011
Before Judges Messano and Espinosa.
Defendant Norvil Peterson appeals from the judgment of conviction and
sentence imposed following a jury trial at which he was found guilty
of: one count of third-degree conspiracy to commit credit card theft,
theft of credit card account
information, or the unlawful use of a fictitious credit card, N.J.S.A.
2C:5-2 and N.J.S.A. 2C:21-6(h) (Count 1); four counts of third-degree
fraudulent use of a credit card, N.J.S.A. 2C:21-6(h) (Counts 2 through
5); two counts of fourth-degree possession of false government
documents, N.J.S.A. 2C:21-2.1(d) (Counts 10 and 11); one count of
third-degree conspiracy to commit identity theft, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:21-17(a)(1) (Count 12); two counts of third-degree
assuming a false identity, N.J.S.A. 2C:21-17(a)(1) (Counts 13 and 14);
four counts of fourth-degree distributing personal information of
another for fraudulent purposes, N.J.S.A. 2C:21-17.3(a) (Counts 15
through 18); one count of third--degree conspiracy to commit theft by
deception, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4 (Count
19); two counts of third-degree theft by deception, N.J.S.A.
2C:20-4 Counts 20 and 21); and one count of third-degree receiving
stolen property, N.J.S.A. 2C:20-7 (Count 22). The jury acquitted
defendant of four counts of third-degree falsely making or embossing a
credit card, N.J.S.A. 2C:21-6(c)(5) (Counts 6 through 9).*fn1
After merging some of the counts and running some sentences
concurrent to others, the judge imposed eight consecutive sentences totaling an aggregate term of thirty-six
and one-half years imprisonment.
Defendant raises the following points on appeal:
THE JUDGE ABUSED HIS DISCRETION UNDER N.J.R.E. 404(B) IN ADMITTING EVIDENCE THAT DEFENDANT PRESENTED FAKE IDENTIFICATIONS DURING A ROUTINE TRAFFIC STOP IN NEW YORK ONE MONTH BEFORE THE THEFTS IN THIS CASE BECAUSE THE NEW YORK EVIDENCE HAD NO RELEVANCE TO THE "SPECIFIC CHARGES" IN THIS CASE. STATE V. KEMP, 195 N.J. 136, 149 (2008). U.S. Const. Amends. VI, XIV; N.J. Const. Art I, ¶ 10
THE SENTENCE VIOLATES DOUBLE JEOPARDY AND IS ILLEGAL UNDER N.J.S.A. 2C:1-8 BECAUSE CONSECUTIVE SENTENCES WERE IMPOSED FOR OFFENSES WHICH SHOULD HAVE MERGED BECAUSE THEY PUNISH THE SAME CRIMINAL CONDUCT OF DEFENDANT AS PREPARATORY OR INCLUDED OFFENSES. THE IMPOSITION OF EIGHT CONSECUTIVE MAXIMUM TERM SENTENCES FOR WHAT WAS ESSENTIALLY ONE THIRD-DEGREE THEFT OF $7000 FROM ONE VICTIM WAS PATENTLY EXCESSIVE. U.S. Const. Amends. V, VIII, XIV; N.J. Const. Art. I, ¶¶ 1, 11, 12
We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction but remand the matter for entry of an amended judgment of conviction.
On June 21, 2005, Patricia Barrett was working at the Linwood branch of PNC Bank when "a slender black male, elderly, wearing a leisure suit" entered the bank and requested a $3,500 cash advance on a Visa credit card. Pursuant to bank policy, Barrett requested identification before proceeding with the transaction. The man produced a New York State driver's license matching the name on the credit card. Barrett handed the man $3,500 in hundred dollar bills in a bank envelope.
Almost immediately thereafter, Lisa Penman, who was also working at the bank, received a phone call from John Owens, the assistant vice president in the Fraud Division of AmSouth Bank. Owens told Penman that someone had just fraudulently secured a cash advance and urged Penman to obtain the license plate number of the person's car and call the local police. From outside the front door of the bank, Penman saw a car exiting the parking lot and memorized its license plate number. She immediately called the Linwood Police Department and provided the license plate number, description of the car and Owens' name and contact information.
Owens testified that he called Penman because he suspected fraudulent cash advance transactions had occurred at the PNC Bank and a nearby Wachovia Bank. At the time of the New Jersey transactions, his customers -- account holders with AmSouth Bank -- were using their cards in Alabama. Owens contacted those customers, Gladys Snell and a representative of Joann Dawson & Company, who denied making or approving the New Jersey transactions.
Detective James Norris and Captain Doug Carman of the Linwood Police Department received a call from their dispatcher regarding a fraudulent cash advance at the PNC Bank and providing a description of the vehicle, the license plate number and the direction it was traveling. Norris was in the immediate area, saw the car and followed it on Route 9 until it turned into the parking lot of Ocean City Home Bank. Other police officers arrived at the scene as some of the vehicle's passengers exited the car.
Carman arrived and saw the car matching the description provided by the dispatcher: a silver-gray Lincoln with Colorado license plates. Its occupants included "a middle aged woman, an elderly gentleman, [and] two . . . younger males. One of them had a pencil thin . . . beard and/or pencil thin mustache . . .
[a]nd there was a small child." The man with the thin mustache identified himself as Morville Paterson, the elderly man identified himself as Emerson Guerrier, the woman identified herself as Sahara DeJean, and the last occupant was identified as Franz Fanfan. At trial, Carman identified defendant as the man who identified himself as Morville Paterson.
DeJean consented to the search of the car. At the bottom of a full tissue box on the floor of the front passenger side of the vehicle, the officers found two bank envelopes, one from Wachovia Bank and one from PNC Bank, each containing $3,500 in cash. The search also produced some legal documents in defendant's name, one of which came from New York, and two Maryland license plates. Carman contacted the New York State Police.
Suspecting a fraudulent cash advance from Wachovia Bank had also occurred, Carman contacted AmSouth. He proceeded to the Wachovia Bank and viewed a surveillance video showing Guerrier and DeJean entering the bank. Guerrier made a transaction using a credit card and driver's license, received $3,500 and left the bank with DeJean.
Carman conducted a second search of the vehicle at which time he seized: an HSBC Visa card in the name Dagobert St. Laurent; a Capital One Visa card in the name Dagobert St. Laurent; a Citi Platinum Select card in the name Jack Joseph; a New York State driver's license with Guerrier's picture but in the name Jack Joseph; receipts from Wachovia Bank and PNC bank recording $3,500 cash advances to Dagobert St. Laurent; and a log book containing names with addresses, birthdays, driver's license numbers, and notations regarding amounts of money.
Defendant was arrested, taken to police headquarters and searched. Hidden in defendant's sock were a Bank of America Visa card in the name Dagobert St. Laurent and a New York State driver's license in the name Dagobert St. Laurent but containing a picture of Guerrier. Defendant initialed the property inventory form with the letters W.G., and Carman testified one of the names defendant used was "Wilner Garson."
New York State Trooper David Augugliaro testified that on March 15, 2005, he was patrolling the Southern State Parkway in the vicinity of Farmingdale, Long Island. He observed a vehicle parked on the side of the road in an area reserved for emergencies. Augugliaro and his partner approached the vehicle to check its occupants: a Hispanic female and a black male, who identified himself as Peterson Morville. Augugliaro identified defendant as that man. Defendant produced proper registration for the vehicle, a gray Mercury Grand Marquis with Colorado license plates matching the description provided by the dispatcher.
Defendant also produced two New York State driver's licenses with the same pictures, birthdates and addresses, but different names -- Bob Pickle and David Court. The photos on the licenses were of Guerrier. Augugliaro also recovered two additional pieces of identification from defendant's wallet: a Sam's Club card in the name Samuel Fakul, and a Bally Total Fitness card in the name Wilner Garson. Both cards displayed defendant's picture.
Defendant did not testify or call any witnesses on his behalf.
Defendant contends the judge abused his discretion in permitting Augugliaro's testimony and admitting into evidence the documents he obtained during the traffic stop on Long Island. He argues this evidence was irrelevant to the charges contained in the indictment and, contrary to N.J.R.E. 404(b), was introduced solely to show a propensity to commit fraud.
N.J.R.E. 404(b) provides "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." However, "[s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid. In State v. ...