On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-02-0534.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2012
Before Judges Carchman and Fisher.
Following a jury trial, defendant Bin Chen*fn1 was convicted of third-degree theft, N.J.S.A. 2C:20-3a and N.J.S.A. 2C:20- 2b(2)(d). As a result of his conduct at trial, defendant was charged with four separate acts of criminal contempt. Following the trial, a hearing was held before the trial judge, at which time the judge concluded that defendant was guilty of four separate acts of criminal contempt. N.J.S.A. 2C:29-9a. On the first contempt charge, defendant was sentenced to a three-month jail sentence and a fine of $500. On the subsequent three contempt charges, defendant was sentenced to three six-month jail sentences and fined $1,000. All sentences were to run consecutively; therefore, the aggregate sentence for the contempt offenses was twenty-one months of incarceration and a fine of $3,500. Thereafter, the judge granted the State's motion to sentence defendant for the theft to an extended term as a persistent offender. The judge sentenced defendant to an extended term of nine and one-half years of imprisonment, together with a period of parole ineligibility of four and three-quarter years. This sentence was ordered to run consecutively to the sentences imposed on the contempt convictions. Defendant appeals. While we affirm the conviction as to the theft and the contempt charges and affirm the sentence as to the theft, we exercise original jurisdiction and order the sentences on the four extant contempt charges to run concurrent to the sentence on the theft charge.
Our focus on this appeal is narrow. As such, we provide an abbreviated recitation of the facts. On August 6, 2008, defendant was observed on a recording security camera focused on him as a result of his suspicious conduct while on the gaming floor of Bally's Casino in Atlantic City. While the camera and casino personnel were observing defendant, defendant proceeded to snatch the purse of a casino guest seated at a poker table. Defendant was quickly apprehended while carrying the purse, arrested and charged with the theft.
At trial, the recorded videotape of the incident was played for the jury. After the State had rested its case, defendant, who is a Chinese national and spoke through an interpreter, indicated that he wanted to make a statement. The judge instructed defendant that if defendant wanted to testify, he had to answer questions posed by his attorney. In addition, defendant was instructed that he would not be allowed to testify about his belief that he was previously convicted on the alleged offense and was further warned that he would be held in contempt if he violated the trial judge's instructions. When defendant started to testify, the following colloquy ensued:
[Defense Counsel]: Did you have a chance to see the video that was shown to the jury in this courtroom today?
The Interpreter: Yes, I did see it.
[Defense Counsel]: Is that you on the video tape?
The Interpreter: Yes. [Defense Counsel]: What do you want to tell
The Court: About what? About that.
What's that mean? [Defense Counsel]: About the incident.
The Court: About the incident.
The Interpreter: I want to tell the jury
what exactly happened at that time.
[Defense Counsel]: Go on.
The Interpreter: First I want to admit the person show[n] on this video is me. This is a stupidest thing I did, two years ago when I lose money out of the casino. I regret it to have done such thing. This is what happen two years ago. I was jailed for two years for this offense. [Prosecutor]: I'll object to that, your honor.
The Court: That objection is sustained and you are to disregard that answer as that statement -- that statement is not true as a matter of law and you are to disregard that statement.
The Interpreter: I don't know why, but this is the facts. I was jailed for this crime. [Prosecutor]: Again, Your Honor, objection.
The Court: That objection is sustained. You'll disregard that answer as that is not a factual ...