State v. RichardsonState v. Richardson
This appeal raises questions respecting the construction and application of
The facts essential to our decision are not complicated. Two Newark police officers, Henry Moore and James Evans, received
The officers drove north along Jacobs Street until they saw a green Cadillac, which matched the description received from the radio dispatch, parked at the corner of Gold Street. Officer Moore, who was approximately 30 feet from the Cadillac, observed an individual, later identified as defendant, exit the vehicle and flee into a rear yard on Jacobs Street. Defendant, who had been the only occupant in the vehicle, fled over fences and through several rear yards while Officer Moore chased him on foot. Moore, who never lost sight of defendant during the five minute chase, eventually apprehended defendant and placed him under arrest.
The officers then examined the Cadillac and observed that the plastic covering surrounding the steering column had been broken, the ignition had been partially broken out of the dashboard and the radio had been partially removed from the dashboard. Although Officer Moore did not attempt to drive the Cadillac, it appeared operable to him. To the best of his recollection, all the tires were on the car. Pursuant to normal police practice, the officers called a towing service to remove the Cadillac for impoundment.
Reynolds J. Reino, the president of A.L.O. Transportation, was the owner of the green Cadillac on February 23, 1983. The car, which was locked, disappeared while parked in front of his Irvington office on the afternoon in question. He reported the theft to the Irvington Police Department. After being advised that his car was at Dante‘s Brothers Towing in Newark, Reino arranged to have it released. When the Cadillac was released,
Defendant did not testify but his employer, Nunzio Martucci, testified as a witness on his behalf. Martucci, who owns a mobile ice cream company, maintained that defendant worked with him selling ice cream on the streets of Newark from 8:30 a.m. until approximately 2:30 p.m. on the day in question. Aside from selling ice cream, defendant also worked as a mechanic on Martucci‘s trucks.
On this appeal, defendant seeks a reversal on a variety of grounds. He contends for the first time on this appeal that the State was required to, but failed to prove as an element of the crime, that the automobile was “movable property.” This contention is grounded in the owner‘s testimony that the tires were missing and that the Cadillac was not in operable condition when it was released to him from Dante‘s storage yard.
a. Receiving. A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner. “Receiving” means acquiring possession, control or title, or lending on the security of the property.
The term “movable property” is defined in
... property the location of which can be changed, including things growing on, affixed to, or found in land, and documents although the rights represented thereby have no physical location. “Immovable property” is all other property.
When the two statutes are read together, it becomes apparent that the Cadillac was “movable property” regardless of whether it had tires or could be moved by its own power. Clearly, it was capable of being moved from one location to another. An inoperable automobile remains movable property
We are completely satisfied from our study of the record that sufficient evidence was presented to permit the jury to find that the State had proven each element of the offense beyond a reasonable doubt. State v. Reyes, 50 N.J. 454 (1967);
Defendant also contends that the judge erred by not sua sponte charging joyriding, or unlawful taking of means of conveyance,
Defendant further contends that the trial judge committed reversible error by failing to have testimony read back to the jury concerning the time of defendant‘s arrest. During the course of the jury‘s deliberations, the trial judge received a note from the jury which simply read, “[t]ime of arrest.” The trial judge informed counsel of the note and expressed his feeling that it was unnecessary to have a read back of testimony. He then asked counsel whether they agreed with him that Officer Moore testified to the effect that he received a radio dispatch at 2:30, that it took two to three minutes for him to respond, and that he located the vehicle along with defendant in front of an abandoned tavern at 455 Springfield Avenue. Defense counsel replied that he thought that was a “fair summary” of the testimony, but that he would prefer to have that portion of Officer Moore‘s testimony regarding the arrest read back to the jury. The trial judge refused defense counsel‘s request since the jury had not asked for a read back of testimony. The judge further stated that he intended to inform the jury that defendant was apprehended five minutes after the chase ensued. Defense counsel noted his objection for the record. Thereafter, the trial judge instructed the jury in the following manner:
Ladies and gentlemen, you have sent out a question which reads, “Time of arrest.” There is no direct testimony as to the exact time of the arrest. There is, however, the testimony of Officer Moore that a dispatch was received at 2:30 in the afternoon; that he and his partner arrived at 455 Springfield Avenue some two to three minutes thereafter; that a chase ensued and that the defendant was apprehended in five minutes.
The decision of whether to grant a jury‘s request for a read back of testimony rests within the sound discretion of the trial judge. However, such a request should be freely granted absent some unusual circumstance. State v. Wilkerson, 60 N.J. 452, 460 (1972); State v. Garrigan, 126 N.J. Super. 442, 446 (App.Div. 1973), aff‘d o.b. 64 N.J. 287 (1974). In the present case, the jury did not specifically request a read back of testimony. Of course, the distinction between on the one hand,
Even though there was no testimony regarding the exact time of defendant‘s arrest, the trial judge nevertheless attempted to answer the jury‘s question by summarizing Officer Moore‘s testimony. Unfortunately, his summarization was inaccurate. Thus, although Officer Moore testified that he received the radio dispatch at approximately 2:30 or 2:45 p.m., the trial judge informed the jury that the dispatch was received at 2:30 p.m. Moreover, the trial judge‘s summarization failed to include the fact that the officers located the stolen Cadillac and defendant on Gold Street, rather than on Springfield Avenue.
While the trial judge‘s summarization contained some minor inaccuracies, we are nonetheless satisfied that the minor inaccuracies did not have the capacity to mislead the jury. It is extremely unlikely that an error regarding the time of defendant‘s arrest contributed to the verdict. State v. Macon, 57 N.J. 325, 340 (1971). Moreover, when the trial judge asked counsel whether they agreed with his summarization, defense counsel replied that he thought it was a “fair summary.” Trial errors acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal. State v. Simon, 79 N.J. 191, 205 (1979); State v. Harper, 128 N.J. Super. 270, 277 (App.Div. 1974), certif. den. 65 N.J. 574 (1974), certif. den. 68 N.J. 284 (1975). In any event, the trial judge informed the jury during
Defendant next contends that the sentence imposed represents an abuse of discretion. We find this contention lacks merit. We are satisfied that the sentence complies with the guidelines established in State v. Yarbough, 100 N.J. 627 (1985); State v. Roth, 95 N.J. 334 (1984); State v. Hodge, 95 N.J. 369 (1984) when the sentencing transcript is read in conjunction with the presentence report and the written reasons for the sentence.
Finally, defendant contends that pursuant to
The pertinent portion of
b. Sentences of imprisonment imposed at different times. When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:
* * * * * * * *
(2) Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be serves .... [Emphasis added]
Vol. II, The New Jersey Penal Code: Commentary, Final Report of the New Jersey Criminal Law Revision Commission (1971), provides:
Subsection b is addressed to the problem of a sentence of imprisonment imposed upon a person who is already serving a term under a sentence imposed for an earlier offense.... As to persons already serving a prior term, ... [w]hether the new term is to run concurrently or consecutively, the defendant must be credited with time served under the first sentence in determining the permissible aggregate length of the term or terms remaining to be served .... [Id. at 336; emphasis added]
From a historical perspective,
The Legislature was undoubtedly aware that a concurrent term imposed at different times also carried certain penal consequences depending upon the length of the sentence and the date on which the subsequent sentence was imposed. Under both prior law and present law where a subsequent concurrent sentence is substantially less than the former sentence and is imposed relatively soon after the former, the subsequent sentence will not extend the time of imprisonment. But if the subsequent concurrent sentence is either significantly longer than the former or is imposed significantly later than the former, the subsequent concurrent sentence will extend the flat parole eligibility date set on the former sentence. As will be seen from the following illustration, the subsequent sentence although designated a concurrent sentence, in reality is concurrent in part and consecutive in part.
Assume that John Doe was sentenced to State Prison for a term of five to seven years on March 1, 1975 and then on March 1, 1977 he was sentenced to State Prison for a concurrent term of five to seven years. Without regard to commutation, the first sentence would have expired on March 1, 1982. The second sentence commenced on March 1, 1977. Without regard to commutation time, the seven year maximum on the second sentence would not have expired until March 1, 1984. Because the subsequent sentence was not imposed for two years after the former sentence, John Doe‘s maximum sentence was extended by two years. The date of imposition of the subsequent sentence and the duration of that sentence determine whether
One of the greatest advantages derived from judicial aggregation of sentences pursuant to
We reject defendant‘s tortured and unreasonable interpretation of
Furthermore, defendant‘s strained and unwarranted construction of the statute would go well beyond the legislative intent of allowing a credit only “in determining the permissible aggregate length of the term or terms remaining to be served”
We perceive that the Legislature intended to mandate judicial aggregation in the limited circumstances outlined in
Additionally, we interpret
The threshold requirements have been met in the present case because defendant was sentenced on December 16, 1983 to a three year custodial term. Then on November 15, 1984 he was sentenced to a consecutive custodial term of five years with two and one-half years of parole ineligibility. The date of the offense involved in the latest sentence, which was February 23, 1983, predated the December 16, 1983 sentence. The date of the offense involved in the subsequent sentencing is irrelevant.
We construe
In reaching our decision today, we have studied carefully the recent decisions in State v. Hall, 206 N.J. Super. 547 (App.Div. 1985); State v. Hugley, 198 N.J. Super. 152 (App.Div. 1985) and State v. Jones, 184 N.J. Super. 626, 629 at n. 2 (Law Div. 1982). While none of those decisions allowed a credit, we reject any suggested interpretation which is inconsistent with our holding.
The judgment of conviction is affirmed. The matter is remanded to the Law Division to enter an amended judgment allowing a credit of 336 days against the eight year aggregated term.
Notes
An illustration can best highlight the conflict. Joe Smith is sentenced on May 1, 1981 to a term of five years. On May 1, 1982 he is sentenced to a consecutive five year term for an offense committed on March 1, 1981. In the last judgment of conviction the trial judge aggregated the two terms as required by