NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2012
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-02-0330.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
Before Judges Sabatino and Maven.
A jury found defendant Peter Dacchille, Jr. guilty of one count of third-degree burglary, contrary to N.J.S.A. 2C:18-2 and one count of fourth-degree theft of movable property, contrary to N.J.S.A. 2C:20-3(a), and acquitted on the remaining charges in the indictment. After merging the theft count and the burglary count, the judge sentenced defendant to a five-year prison term with a two-and-a-half-year period of parole ineligibility. Defendant appeals the conviction and sentence. We affirm but remand to correct the judgment of conviction.
The facts as adduced from the trial record are as follows. Defendant was charged with burglarizing three structures with co-defendant, Joseph Cicero. According to Cicero's statement to the police, Cicero drove defendant to General Dynamics, a defunct manufacturing plant. Cicero admitted to lending defendant a saw and a crowbar, which defendant used to steal copper pipes from the plant. Cicero explained that defendant sold the copper at a scrap yard.
At trial, the State did not offer any direct physical evidence linking defendant to the burglaries. Rather, the State relied on Cicero's statement and plea agreement, in which he agreed to cooperate as a witness for the State at defendant's trial. Cicero, however, recanted his story during his testimony, contending that he only implicated defendant because the investigating officer, Detective Lyons, had choked and threatened him, thereby coercing him into making a statement against defendant. In light of his changed testimony, Cicero's statement to police was admitted as a prior inconsistent statement. N.J.R.E. 803(a)(1)(B).
The State also presented defendant's father, Peter Dacchille, Sr. (Dacchille) as a witness. Dacchille had previously provided a recorded statement to police in which he stated he believed his son had burglarized an abandoned building located on Avenel Street; that his son used a saw to commit a theft at General Dynamics; and that his son thereby got "a couple hundred dollars worth" of copper, which he had sold to others. On direct examination, however, Dacchille testified inconsistently with his prior recorded statement. Following a Gross hearing, State v. Gross, 121 N.J. 1 (1990), the court determined that the recorded statement met the reliability requirements of N.J.R.E. 803(a)(1)(A), and permitted the jury to hear the recording.
Defendant elected not to testify. His defense theory was that Cicero's statement was unreliable. Specifically, defendant sought to show that Cicero's statement was 1) made while he was under the influence of narcotics; 2) the product of Lyons's coercion; and 3) motivated by his effort to receive a favorable plea deal. Further, defendant argued that his father's statement to police did not corroborate his guilt.
Ultimately, the jury found defendant guilty solely with respect to the General Dynamics burglary and determined that the value of the stolen copper was between $200 and $500, thereby reducing the theft charge from a third-degree to a fourth-degree offense.
The court denied defendant's post-verdict motion for a judgment of acquittal, and new trial. This appeal followed in which ...