Opinion
DOCKET NO. A-1339-14T2
05-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CRAIG THOMPSON, a/k/a JOE JOHNSON and CRAIG COPELAND, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-10-2478. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A jury found defendant Craig Thompson guilty of third-degree receiving stolen property, N.J.S.A. 2C:20-7; he was sentenced to four years in prison. Defendant appeals his conviction and sentence. We affirm.
I.
The charges against defendant arose out of a home burglary in Newark. The owner came home and discovered that his bedroom window was open and a number of items, including an iPad and several watches, were missing. The iPad had a GPS security feature that allowed the device to be tracked. The following day, the homeowner provided the tracking software to the police, who downloaded the software and tracked the device to a location in Newark.
Two officers then went to the location. While the officers were surveilling the area, the tracking software indicated that the iPad was in motion leaving a building. The police then saw defendant and another man exit the building. An officer approached the men and observed that they were wearing watches that matched descriptions of watches that had been taken from the home. The officer also saw that defendant was wearing a heavy coat and under the coat defendant was carrying a bag. Police arrested defendant, searched the bag, and found the homeowner's iPad, as well as other property taken from the home.
Defendant filed a pre-trial motion to suppress the items seized when he was arrested. The trial judge denied the motion without an evidentiary hearing, reasoning that there were no material disputed facts. Relying on the papers submitted with the motion, the judge ruled that the police had reasonable suspicion to stop and question defendant and when they saw the watches, the police had probable cause to arrest defendant.
Following a four-day trial, a jury found defendant guilty of third-degree receiving stolen property, N.J.S.A. 2C:20-7, which was the only charge against defendant. On July 25, 2014, defendant was sentenced to four years in prison.
On appeal, defendant argues:
POINT I - THE ORDER SUMMARILY DENYING DEFENDANT'S PRETRIAL MOTION TO SUPPRESS EVIDENCE SHOULD BE REVERSED BECAUSE THERE WERE CONTESTED ISSUES OF FACT THAT WARRANTED AN EVIDENTIARY HEARING
POINT II - DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S FAILURE TO ASSURE THAT ALL SIDEBAR CONFERENCES WERE RECORDED WAS A "STRUCTURAL ERROR" THAT VIOLATED DEFENDANT'S RIGHTS TO A FAIR TRIAL AND APPELLATE REVIEW
POINT III - THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT IT MAY INFER DEFENDANT WAS THE THIEF
POINT IV - THE CUMULATIVE EFFECT OF PREJUDICE FROM THE ERRORS THAT OCCURRED DURING DEFENDANT'S TRIAL WARRANT REVERSAL OF HIS CONVICTION (NOT RAISED BELOW)
POINT V - THE "FLAT" FOUR (4) YEAR CUSTODIAL SENTENCE IMPOSED ON DEFENDANT'S CONVICTION FOR RECEIVING STOLEN PROPERTY WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF JUDICIAL SENTENCING DISCRETION
II.
Defendant first argues that the trial court erred in denying the motion to suppress without an evidentiary hearing. Generally, a motion to suppress evidence requires a hearing, and if material facts are disputed, testimony must be heard. R. 3:5-7(c). Rule 3:5-7(b) provides that when a defendant files notice that he or she will seek to suppress evidence seized without a warrant, the State must file a motion, together with a brief and a statement of facts. The defendant then is required to file a brief and counter-statement of facts. R. 3:5-7(b). "It is only when the defendant's counter-statement places material facts in dispute that an evidentiary hearing is required." State v. Green, 346 N.J. Super. 87, 90-91 (App. Div. 2001) (citing State v. Hewins, 166 N.J. Super. 210, 213-15 (Law Div. 1979), aff'd, 178 N.J. Super. 360 (App. Div. 1981)).
Here, defense counsel filed a motion to suppress with a supporting certification of counsel, which did not identify any disputed facts. We were not provided with the State's papers or any responding counter-statement of facts from defendant. Normally, such information would need to be reviewed to determine if there were disputed issues of fact. In this case, however, defendant has not identified any material fact disputes concerning the facts relied upon by the trial judge in denying defendant's motion to suppress. Moreover, the testimony at trial confirmed the material facts relied upon in deciding the motion to suppress.
In denying the motion to suppress, the trial judge relied on the fact that the officers used software to track the iPad to a specific location. Once at that location, the tracking software showed the iPad was on the move and the officers then saw defendant and another man exit the building. An officer approached the men and observed that they were wearing watches, which matched the description of watches that had been taken from the burglarized home. Defendant was then arrested and a bag he was carrying under his coat was searched incident to the arrest.
These undisputed facts establish that there was reasonable articulable suspicion to make an investigatory stop to question defendant. State v. Coles, 218 N.J. 322, 343 (2014); State v. Pineiro, 181 N.J. 13, 20 (2004). The information concerning the tracking of the iPad coupled with the observation of the watches then provided probable cause for the arrest of defendant. State v. Brown, 205 N.J. 133, 144 (2011); State v. Marshall, 199 N.J. 602, 610 (2009). Finally, the search of the bag carried by defendant was lawful as incident to his arrest. State v. Minitee, 210 N.J. 307, 318 (2012).
The only fact defendant identifies as a disputed fact is that the officer stated that it was suspicious that defendant was wearing a heavy coat because it was warm. Defendant argues that the temperature was approximately sixty degrees. Whether defendant was or was not wearing a coat was not a material fact to the motion to suppress. Even without considering the coat, there was reasonable suspicion for the stop and probable cause for the arrest.
Defendant also argues that the trial judge did not make adequate findings of fact and conclusions of law in denying the motion to suppress. When a criminal judge decides a dispositive motion, the judge must make findings of fact and state his or her conclusions of law either in writing or orally on the record. See R. 1:7-4; R. 3:29.
Here, the trial judge made findings of fact and explained her reasons on the record. While those findings and conclusions of law could have been expressed in greater detail, they were sufficient to allow us to conclude that there was no error committed in denying the motion to suppress.
Next, defendant contends that the trial court erred in instructing the jury, over his objection, that it could infer that he was the thief. The trial judge provided the model jury instructions for receiving stolen property. Model Jury Charge (Criminal), "Receiving Stolen Property" (2005). The trial judge also instructed the jury as follows, using the supplemental jury charge:
If you find that the defendant was in possession of stolen property within a reasonably short period of time after the theft, you may infer that defendant is the thief.
Although possession of stolen property within a short period of time from the theft is not in and of itself a crime, since it is possible under our law innocently to possess such goods, such possession within a reasonably short time after the theft may be found sufficient by you to infer that the possessor is the thief unless the evidence shows to your satisfaction that the property was acquired by the defendant by legal means.
Exclusive possession of stolen property shortly after the theft is ordinarily a circumstance from which you can reasonably draw the inference and find in light of the surrounding circumstances shown by the evidence in the case that the possessor is the thief.
[See Model Jury Charge (Criminal), "Supplemental Charge on Theft Used If Defendant Is Found To Be In Possession Of Stolen Property Within A Short Time After The Theft" (2008).]
As our Supreme Court has stated, while "[m]odel jury charges are often helpful to trial courts[,] . . . it is not always enough simply to read the applicable provision of the Criminal Code, define the terminology, and set forth the elements of the crime." State v. Concepcion, 111 N.J. 373, 379 (1988). "An instruction that is appropriate in one case may not be sufficient for another case," and "the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case." Ibid.
Here, we agree with defendant that the use of the word "thief" was improper. Defendant was not charged with burglary, N.J.S.A. 2C:18-2, or theft by unlawful taking, N.J.S.A. 2C:20-3. Thus, a determination as to whether he came to possess the stolen property because he was the "thief" was inapplicable. Instead, the trial judge should have molded the charge to suit the evidence in the case.
In assessing instructional errors provided to the jury, however, we employ a harmless error analysis. State v. Camacho, 218 N.J. 533, 550 (2014). Here, we find the supplemental instruction constituted harmless error. The evidence of defendant's guilt was overwhelming. He was tracked by the GPS on the recently stolen iPad and found in possession of both that device and a stolen Blackberry cell phone, both of which contained the contact information of the victim. See State v. Gillispie, 208 N.J. 59, 93 (2011) (finding harmless error in light of overwhelming evidence of the defendant's guilt).
Defendant also argues that his conviction should be reversed because the trial judge failed to record all sidebar conferences. During trial, none of the sidebar conferences were recorded. Defendant, however, did listen to the sidebars through ear plugs connected to a hearing device.
All proceedings in court should be recorded verbatim unless there are special reasons for not doing so. R. 1:2-2. Accordingly, a trial judge must exercise care to assure that the verbatim record is preserved as required by Rule 1:2-2 and Rule 2:5-3(a). "When the verbatim record is lost, it is the trial judge's duty as a matter of due process to reconstruct the record in a manner sufficient to provide a reasonable assurance of accuracy and completeness." State v. Bishop, 350 N.J. Super. 335, 347 (App. Div.), certif. denied, 174 N.J. 192 (2002). It is not, however, the trial judge's sole responsibility to reconstruct the record. Id. at 348. "Instead, reconstruction of the record is a 'participatory process' involving the court and counsel." Ibid. (quoting State v. Casimono, 298 N.J. Super. 22, 25 (App. Div. 1977), certif. denied, 154 N.J. 609 (1998)).
Moreover, we have recognized that "where a defendant contends that error was made in an unrecorded sidebar conference, prejudice may result from our inability to review the alleged error." State v. Paduani, 307 N.J. Super. 134, 143 (App. Div.), certif. denied, 153 N.J. 216 (1998). Here, defendant made no effort to reconstruct the missing sidebars. We therefore ordered a temporary remand to reconstruct the record. See R. 2:5-3(f). After receiving the reconstructed record, we also afforded appellate counsel the opportunity to provide supplemental briefing based on the reconstructed record. Both parties, however, declined and elected not to submit supplemental briefs.
In a letter, the State noted defendant was able to listen to the non-recorded sidebar conversations through ear plugs to a hearing device.
We have reviewed the transcript of the reconstruction hearing in conjunction with the previously submitted briefs and transcripts, and find no grounds warranting the reversal of a jury verdict. Given that the record was reconstructed, defendant has failed to show that there were any structural errors affecting the fairness of the trial. See Camacho, supra, 218 N.J. at 549. Indeed, defendant has effectively abandoned his arguments that he suffered any prejudice from the failure to record the sidebars because he has made no arguments based on the reconstructed record.
Nevertheless, we have also reviewed the reconstructed sidebars and find no errors. At the reconstruction hearing, the trial judge identified a total of thirteen unrecorded sidebars. In his initial brief defendant, however, challenged only nine of these sidebars. Eight of the challenged sidebars addressed evidentiary objections and rulings. Specifically, four of the sidebars were conducted during defense counsel's opening and closing concerning objections made by the prosecutor. Four of the other sidebars occurred during testimony of one of the police officers (Officer Moore). We discern no abuse of discretion in the trial judge's evidentiary rulings pertaining to these eight sidebars. See State v. P.S., 202 N.J. 232, 250 (2010) (explaining that appellate courts review evidentiary rulings for abuse of discretion). The final and ninth challenged sidebar concerned the jury charge. After charging the jury, the trial judge called a sidebar to ensure that the charge was accurately given. It was at this sidebar that defense counsel renewed his objection to the supplemental jury charge. There were no other objections made. We find no error occurred during this sidebar.
At the reconstruction hearing, there were discussions regarding whether the total number of unrecorded sidebars amounted to eighteen or thirteen. Ultimately, the trial judge and counsel agreed that there were thirteen sidebars. --------
We have also reviewed the five sidebars that were not challenged. Those five sidebars concerned administrative and scheduling matters and we find no errors in any of those sidebars.
Lastly, defendant argues that his sentence was manifestly excessive and an abuse of discretion. We disagree. Appellate review of a criminal sentence is generally guided by an abuse of discretion standard. State v. Case, 220 N.J. 49, 65 (2014). Under this standard, we will affirm a criminal sentence unless:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."Whether a sentence violates sentencing guidelines is a question of law that we review de novo. State v. Robinson, 217 N.J. 594, 603-04 (2014). If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, we will not "substitute [our] judgment for that of the sentencing court." Fuentes, supra, 217 N.J. at 70.
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Here, the court followed the statutory guidelines and its findings of aggravating and mitigating factors are supported by credible evidence in the record. Moreover, the four-year term imposed does not shock our judicial conscience and, accordingly, we discern no abuse of discretion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION