On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-04-01021.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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?
Q. And how much total amount was missing from the Trump Taj Mahal during the period of time?
Q. So that's how much those machines are short?
Q. And that includes the period of ...