STATE OF NEW JERSEY v. MAURICE L. LAMBERT

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4080-03T44080-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE L. LAMBERT,

Defendant-Appellant.

_______________________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Stern and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

Indictment No. 03-02-00304.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jean M. Hartmann, Designated

Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent (Christopher A. Alliegro, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Maurice L. Lambert was convicted at a joint trial with co-defendant Eddie Hosendove of attempted theft by deception and conspiracy to commit theft. He was sentenced to concurrent terms of eight years in the custody of the Commissioner of Corrections, with four years to be served before parole eligibility. The charges related to the attempt by defendant and Hosendove to cash a $3,601.52 pension check payable to Gerald Williams. Defendant was represented to be Williams while Hosendove tried to cash the check. The facts are detailed in our opinion in the co-defendant's case being filed herewith. See State v. Hosendove, A-5365-03T4.

On this appeal defendant argues:

POINT I THE TRIAL COURT'S FAILURE TO INSTRUCT THE

JURY AS TO A NECESSARY ELEMENT OF THE CRIMES

CHARGED WAS PLAIN ERROR REQUIRING REVERSAL

(U.S. Const. Amend VI, XIV; N.J. Const. (1947)

Art. I, Pars. 9, 10) (Not Raised Below)

POINT II THE TRIAL COURT ERRED IN DENYING DEFENDANT'S

MOTION TO DISMISS

(U.S. Const. Amend. VI, XIV; N.J. Const. (1947)

Art. I. Par. 8, 10) (Partially Raised Below)

POINT III THE TRIAL COURT ERRED IN PERMITTING THE STATE TO

AMEND THE INDICTMENT AFTER ALL PARTIES HAD RESTED

THEIR CASES

(U.S. Const. Amend. VI, XIV; N.J. Const. (1947)

Art. I, Par. 10) (Partially Raised Below)

POINT IV THE TRIAL COURT'S FAILURE TO GIVE A SPECIFIC

UNANIMITY INSTRUCTION WAS PLAIN ERROR AND

REQUIRES REVERSAL

(U.S. Const. Amend. V, VI, XIV; N.J. Const. (1947)

Art. I, Par. 9) (Not Raised Below)

POINT V DEFENDANT'S SENTENCES WERE IMPROPER

a. DEFENDANT WAS DENIED HIS CONSTITUTIONAL

RIGHT TO TRIAL BY JURY AND FINDINGS BASED

UPON PROOF BEYOND A REASONABLE DOUBT WHEN

THE TRIAL COURT SENTENCED HIM TO EXTENDED,

GREATER THAN PRESUMPTIVE, SENTENCES WITH

MAXIMUM PERIODS OF PAROLE INELIGIBILITY

BASED ON ITS FINDING OF STATUTORY AGGRAVATING

FACTORS

(U.S. Const. Amend. VI, XIV; N.J. Const. (1947)

Art. I, Pars. 8, 9, 10, 11) (Not Raised Below)

b. THE CONSPIRACY COUNT SHOULD HAVE BEEN MERGED

INTO THE SUBSTANTIVE CRIME COUNT

(Not Raised Below)

c. THE IMPOSITION OF TWO EXTENDED TERMS WAS ERROR

(Not Raised Below)

We find the contentions, with respect to the conviction, to be without merit, but merge the convictions and remand for resentencing. We further conclude that only the following discussion is warranted in a written opinion. R. 2:11-3(e)(2).

We find no reversible error caused by the judge's failure to charge the jury that it had to determine the value of the check defendant and Hosendove tried to cash. The amount of the check was stipulated by the parties. Here the judge did not instruct the jury that it was "bound" by the stipulation, or say anything to that effect. To the contrary, she did not instruct the jury that it had to find any value. See State v. Wesner, 372 N.J. Super. 489, 494-95 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005). Because there was a stipulation and no objection to the instructions, we conclude that the jury charge did not constitute plain error. Ibid. citing United States v. Cornish, 103 F.3d 302, 304-06 (3d Cir.), cert. denied, 502 U.S. 1219, 117 S. Ct. 1711, 137 L. Ed. 2d 835 (1997).

The indictment alleged both offenses occurred "on diverse dates between October 7, 2002 and October 18, 2002," and the jury was instructed to decide if defendant attempted or conspired to cash the check "on a date or dates between October 7, 2002, and October 18, 2002." Defendant contends that he could have been found guilty of the crimes based on events occurring on different dates. Defendant further contends both that the State must prove the allegation of wrongdoing on "diverse dates" and that Hosendove was improperly permitted to introduce proof of a prior illegal attempt by defendant to cash the check. We detailed the evidence in the Hosendove opinion.

Even though the indictment charged "diverse" dates, the proofs with respect to an attempted theft on one date suffices to sustain a conviction of the charges as alleged during that period. There is no contention presented that defendant did not receive sufficient notice or a fair opportunity to prepare his defense. See State v. C.H., 264 N.J. Super. 112, 124-26 (App. Div.), certif. denied, 134 N.J. 479 (1993). And here a conspiracy during that period was alleged and proven. The problem is that the defendant theorizes the jury could have found the attempted theft could have occurred at different times and in different stores.

We decline to reverse because the judge did not charge an obligation to unanimously find the attempted theft occurred at a specific location on a specific date. While the prosecutor did refer to the prior attempt to cash the check in his summation, he repeatedly emphasized that irrespective of "what may have happened on October 8th [i]t shouldn't leave questions about what happened on October 18." While he talked about an agreement to cash a check between October 7 and 18, the thrust of his argument related to what happened in the liquor store on October 18.

Therefore, we find no plain error with respect to the conviction. State v. Frisby, 174 N.J. 583, 596 (2002); State v. Parker, 124 N.J. 628, 637-42 (1992). In any event, the conspiracy verdict is unassailable irrespective of the date or dates of the attempts, and we order merger of the convictions. Moreover, defendant does not argue "surprise" or inadequate discovery based on the State's failure to provide something in its file with respect to the prior attempt. Hence, defendant is not entitled to reversal based on the testimony co-defendant Hosendove introduced.

Regarding sentencing, however, the two extended terms are impermissible, see N.J.S.A. 2C:44-5(a); State v. Latimore, 197 N.J. Super. 221-23 (App. Div. 1984), certif. denied, 101 N.J. 328 (1985), and were above the presumptive extended term. The judge referred only to aggravating factors three, six and nine, but did not relate them exclusively to the prior record. In any event, because the two convictions must merge, we remand for imposition of sentence on the merged offense. The remand proceeding must be consistent with State v. Natale, 184 N.J. 458 (2005), and State v. Young, 379 N.J. Super. 498 (App. Div. 2005).

 
The judgment of conviction is affirmed, but the matter is remanded for resentencing.

During the State's case, the judge read the following stipulation to the jury:

- Ladies and gentlemen, as I told you before, a stipulation is an agreement amongst the parties that a fact-certain facts are true. You must accept these facts as I read them to you.

- The parties have entered into the following stipulation on today's date:

- The stipulation is that "On October the 7, 2002, a pension check was issued in the amount of $3,601.52 by the State of New Jersey to Gerald Williams. The check number was 224881. The check was made to Mr. Williams at 142 Division Street, Neptune, New Jersey, 07753.

- "On October 22, 2002, the State of New Jersey put a stop payment on check number 224881 as a result of Mr. Williams contacting the State to indicate that he never received the check.

- "On November 4, 2002, a second check, check number 230220 was issued to Mr. Williams in the amount of $3,601.52 to replace the original check. That check also was made to Mr. Williams at a different address."

That is the stipulation.

(continued)

(continued)

7

A-4080-03T4

December 30, 2005

 


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