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State of New Jersey v. Phillip S. Silvers

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 25, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PHILLIP S. SILVERS, DEFENDANT-DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-04-01021.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 12, 2011

Before Judges A. A. Rodriguez and Sabatino.

Following a jury trial, defendant, Phillip S. Silvers, was convicted of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3; and third-degree conspiracy with co-defendant Crystal M. Studstill, to commit theft, N.J.S.A. 2C:5-2 and 2C:20-3. Prior to sentencing, defendant moved for a judgment of acquittal and for a new trial, arguing that the jury did not deliberate for a sufficient period of time, and the State failed to prove that the amount of the theft exceeded $500. The judge denied defendant's motions, as well as the State's motion for imposition of an extended term. After merging the conspiracy conviction into the theft conviction, the judge imposed a five-year term with a thirty-month period of parole ineligibility. We affirm.

At trial, two witnesses testified for the State. Defendant did not testify or present any witnesses. In his opening statement, the Assistant Prosecutor made the following comment:

I'm going to bring in for you Tom Nicell, and he's the manager of Coca Cola vending machine company; they keep accurate records of how much money was stolen from their vending machines, and he's going to confirm what [Studstill] will tell you: hundreds of dollars per floor, thousands of dollars over the course of the night. And he is also going to tell you another interesting fact.

He's going to tell you that only a couple of weeks before January 4th, before this defendant stole from the vending machines, one of his Coca Cola trucks that been broken into; a key had been stolen from that truck and never recovered.

Studstill pleaded guilty to a disorderly persons offense, and in exchange, the State agreed to dismiss any other charges against her. She testified for the State at defendant's trial, and stated that she and defendant, her boyfriend, drove to the Trump Taj Mahal in Atlantic City on January 3, 2009. According to Studstill, they were both heroin addicts. Defendant had a vending machine key in his possession. He planned to use it to access the cash inside the vending machines at the hotel.

Security personnel blocked the pair from entering the hotel portion of the Taj Mahal because they did not have a room reservation. Defendant asked Studstill to rent a room. Around 4:00 a.m. on January 4, 2009, Studstill reserved a room. She then acted as a lookout while defendant opened the vending machines on the first seven floors of the hotel. However, Studstill was nervous about getting caught, so she returned to her room. Defendant continued to other floors.

Taj Mahal surveillance cameras were admitted into evidence and shown to the jury during Studtill's testimony. The surveillance camera videotape showed defendant and Studstill arriving on the seven lower floors. Defendant would then disappear from view for a few moments to enter an alcove where the vending machines are located. Afterwards, defendant and Studstill left the floor by taking an elevator. The same activity occurred on the next floor. Studstill, however, stopped this sequence on the seventh floor, but defendant continued to the next twenty three floors. Studstill identified herself and defendant in the security videotape.

During a recess following Studstill's testimony, the judge told counsel for the parties that after Studstill was "finished testifying, I think I'm going to give a modified [N.J.R.E.] 404(b) [jury instruction] about this drug usage[.]" The prosecutor agreed with the judge that an instruction should be given "during the trial." The judge provided such instruction after the next witness testified.

Tom Nicell, the Full Service Vending Director for Philadelphia Coca-Cola, testified for the State. He indicated that the vending machines that were ransacked by defendant belonged to his employer. He also testified that on December 24, 2008, "somebody had broken into one of our service trucks and had stolen a set of keys, vending keys[,] . . . and we have no idea where they are as of today." According to Nicell, these keys were capable of opening the Taj Mahal vending machines.

Nicell stated that $4,162.73 was taken from the vending machines in the Taj Mahal. This is an excerpt of his colloquy with the Assistant Prosecutor:

[ASSISTANT PROSECUTOR]: Okay. So correct me if I'm wrong, but you're saying this shortage is the missing amount? [NICELL]: The missing amount.

Q. Okay. And did your business records -- or do your records indicate to you how much total was missing from the Trump Taj Mahal for that period of time?

A. Yes.

Q. And how much total amount was missing from the Trump Taj Mahal during the period of time?

A. $4,162.73.

Q. So that's how much those machines are short?

A. Yes.

Q. And that includes the period of January 4th, 2009?

A. Yes.

After Nicell testified, the judge gave a jury instruction concerning Studstill's testimony. He explained that any evidence of defendant's drug use would not normally be permitted to "show that he has a disposition or tendency to do wrong and therefore must be guilty of the offenses charged in this indictment." Nevertheless, the jury would be permitted to consider that evidence of defendant's drug use as the motivation for the thefts. They could not simply "decide that just because Ms. Studstill has indicated to you that they were going to use this money to buy drugs, that he must be guilty of the present crimes charged." The judge gave the same instruction a second time before the jury deliberated.

On appeal, defendant contends:

THE TRIAL COURT ERRED IN ADMITTING TESTIMONY FROM A STATE'S WITNESS THAT [DEFENDANT] COMMITTED THEFT IN ORDER TO PURCHASE DRUGS (NOT RAISED BELOW).

Defendant argues that evidence about his drug use was inadmissible to prove his motive for committing a theft because the judge did not "analyze the admissibility of other-crimes evidence" pursuant to State v. Cofield, 127 N.J. 328 (1992). According to defendant, the evidence was irrelevant because his motive was not disputed at trial. We are not persuaded by this argument.

We conclude that the trial judge correctly admitted evidence of defendant's prior use of heroin. The thrust of the proofs established that the motive was not to acquire money, but to satisfy an addiction. If it was error to admit such unobjected evidence of motive, the admission did not constitute harmful error, i.e., error "capable of producing an unjust result." R. 2:10-2.

We first note that the State introduced significant evidence of defendant's guilt, including Studstill's testimony, as corroborated by surveillance video. According to Studstill, the proceeds of the theft were used to purchase heroin. Thus, the motivation for the crime was defendant's and Studstill's addiction. The judge gave a thorough instruction to the jury limiting how they could consider the evidence.

The judge was not asked, nor did he decide, whether the evidence concerning defendant's drug use was admissible. After the State introduced the evidence, the judge offered, sua sponte, a detailed curative instruction to the jury. He explained that the jury could not consider the evidence as relevant to defendant's bad character, but rather only as evidence of defendant's motive to commit the crime.

This court may conduct a plenary review of the admissibility of a prior wrong, act or crime, pursuant to N.J.R.E. 404(b), where the trial judge did not conduct such an analysis. State v. Barden, 195 N.J. 375, 391 (2008).

Pursuant to N.J.R.E. 404(b):

[E]vidence 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. Such 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.

Even where a judge determines that the proffered evidence is admissible pursuant to this rule, the judge should consider whether its probative value outweighs its potential prejudice.

State v. Stevens, 115 N.J. 289, 300 (1989). This inquiry is governed by another test:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992).]

To determine whether the evidence bears upon a material disputed issue, "the [c]court should consider whether the matter was projected by the defense as arguable before trial, . . . or was one that the defense refused to concede." State v. P.S., 202 N.J. 232, 256 (2010). For example, in State v. Mazowski, 337 N.J. Super. 275, 278 (App. Div. 2001), the defendant argued that the court erred in admitting evidence of his drug addiction as his motivation for committing a theft. This court agreed, holding:

[u]nless we postulate that in every prosecution for theft, the question of whether the defendant needed money --whether he was rich or poor, employed or unemployed, a drug addict . . . is a material fact, there is simply no basis to find that defendant's alleged need for money was a 'material issue in dispute' here.

[Id. at 283.]

Quite simply, a defendant's motive to commit theft is typically to obtain money. Id. at 282.

Here, as in Mazowski, defendant's motive for committing the theft was not a material issue in dispute. Thus, the first prong of Cofield could not have been satisfied had the judge conducted that analysis. Nevertheless, given the strength of the State's proofs of guilt, it cannot be said that this was the type of plain error that is "clearly capable of producing an unjust result." R. 2:10-2.

Defendant also contends:

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE THAT SUGGESTED THAT [DEFENDANT] COMMITTED A PRIOR CRIME (NOT RAISED BELOW).

Specifically, defendant challenges the allegation that he stole the missing Coca-Cola key. We disagree.

Neither Nicell's testimony nor the prosecutor's opening statement indicated that defendant stole the key. In fact, both the testimony and comment indicated that the identity of the thief is unknown. The comment was not inculpatory.

The last reference to the key was during the State's summation:

How could there be no damage to a vending machine if he doesn't have a key? And I'm not suggesting to you he stole a key, that is not really part of this case. What is part of this case is a key was missing, and clearly, I suggest to you, a key was used.

N.J.R.E. 404(b) is only implicated where a party introduces evidence of a defendant's other crimes or wrongs. Here, the testimony concerning the stolen key was not introduced to prove that defendant had stolen the key. Rather, it was introduced to show that: (1) vending machine keys existed that could open several different vending machines without causing any physical damage to the machines; (2) that those vending machine keys were sometimes taken from the servicing trucks; and (3) a person in possession of a vending machine key had complete access to the cash inside, just like a servicing employee.

Further, neither Studstill nor Nicell ever suggested that defendant had stolen the key. To the contrary, they testified that they did not know where or how defendant obtained the key. Thus, the testimony and prosecutorial comment challenged were not evidence of an uncharged crime committed by defendant, introduced to prove that defendant was predisposed to commit the Taj Mahal theft. Therefore, N.J.R.E. 404(b) is not relevant.

Defendant contends that:

THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION FOR ACQUITTAL ON THE CHARGE OF THIRD DEGREE THEFT.

We disagree.

A motion for judgment of acquittal after a verdict, pursuant to Rule 3:18-2, is to be reviewed according to the following standard: whether the evidence, viewed in its entirety, . . . and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn there from, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt. [State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975).]

Theft is a third-degree crime when the amount stolen is greater than $500 but less than $75,000. N.J.S.A. 2C:20-2(b)(2)(a). "The value of the property stolen is an element of the offense" that the State must prove. State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987).

Here, Studstill testified that she saw defendant remove cash from the machines on each floor. Nicell testified that the business records of his employer showed a $4,162.73 loss during the relevant period.

Applying the applicable standard to this evidence, we conclude that a motion for judgment would not have succeeded.

Defendant also contends:

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

Because we conclude that defendant's contentions did not prove any harmful error, there is no cumulative error effect warranting reversal.

Defendant further contends:

THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON [DEFENDANT] (NOT RAISED BELOW).

Defendant was thirty years old at the time of the sentencing hearing. He has a history of four indictable and twenty disorderly persons convictions. The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3) the risk that the defendant will commit another offense; (6) the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; and

(9) the need for deterring the defendant and others from violating the law. The judge also found one of the mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (2) the defendant did not contemplate that his conduct would cause or threaten serious harm. The judge imposed a five-year term with a thirty-month parole disqualifier.

Defendant contends that there was no evidentiary basis for the judge's application of the aggravating factors, and that the judge should have applied mitigating factor (1) because his conduct did not threaten "serious harm" because of the "nonviolent nature of the offense." We disagree.

Mitigating factor (1) does not apply in every instance where the crime was nonviolent. For example, in State v. Tarver, 272 N.J. Super. 414, 434 (App. Div. 1994), we held that "[d]istribution of cocaine can be readily perceived to constitute conduct which causes and threatens serious harm."

Here, defendant had an extensive criminal record, including multiple property crime offenses, which did not warrant the application of mitigating factor (1). The number of convictions for non-violent crimes nullifies the impact of the fact that in this particular offense, no violence was threatened. In short, defendant is a persistent thief. His sentence for another theft offense should not be decreased by the commission of another theft.

From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The aggravating factors preponderate and justify imposition of a maximum period of parole ineligibility. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

20120725

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