STATE OF NEW JERSEY v. DAMON MILLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1672-04T41672-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAMON D. MILLER,

Defendant-Appellant.

__________________________________

 

Submitted December 21, 2005 - Decided January 10, 2006

Before Judges Wefing and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

Indictment No. 04-01-0029.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Philip Lago,

Designated Counsel, of counsel and

on the brief).

Luis A. Valentin, Monmouth County

Prosecutor, attorney for respondent

(Kathleen Bycsek, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Damon Miller was convicted after a jury trial of the fourth-degree crime of receiving stolen property. N.J.S.A. 2C:20-7; N.J.S.A. 2C:20-2b(3). He was sentenced to a term of eighteen months in prison, and ordered to pay the mandatory fines and penalties.

We gather the following salient facts from the evidence presented at trial. Defendant was detained by an officer from the Monmouth Beach Police Department because he fit the description of a suspect involved in a residential burglary. When initially questioned by the police, defendant was unable to provide a coherent explanation for his presence in the area where the crime had occurred. He also identified himself as "Larry Johnson." The officer recognized defendant as "Damon Miller," and arrested him in connection with the burglary.

Once at the police headquarters, defendant waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and admitted to selling to a pawnshop a ring and necklace that he had allegedly found while fishing. These two items were among the stolen items listed by the victim of the burglary. The police recovered a total of thirteen items from the pawnshop, including: a college ring; a diamond wedding band; a plain gold wedding ban; a sapphire ring; a few gold bracelets; two charms; and two gold necklaces.

Defendant was originally indicted for receiving stolen property with a value in excess of five hundred dollars, a third-degree offense. The only proof presented by the State as to the value of these items came from the testimony of the victim herself. She estimated, based on her personal experience, that the aggregate value of the items recovered from the pawnshop exceeded five hundred dollars. The jury convicted defendant of the lesser included offense of receiving stolen property with a value of at least two hundred dollars, but less than five hundred dollars.

Defendant now appeals raising the following arguments:

POINT ONE

THE COURT COMMITTED PLAIN ERROR IN FAILING TO DECLARE A MISTRIAL WHEN A STATE WITNESS COMMENTED ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT. (Not Presented Below)

POINT TWO

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL.

POINT THREE

THE TRIAL COURT COMMITTED ERROR BY ALLOWING ADMISSION OF EXPERT TESTIMONY FROM A LAY WITNESS.

POINT FOUR

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT FIVE

THE SENTENCE IMPOSED BY THE COURT IS EXCESSIVE.

POINT SIX

THE SENTENCE IMPOSED VIOLATES DEFENDANT'S RIGHTS TO TRIAL BY JURY AND DUE PROCESS.

We reject these arguments and affirm. We are satisfied that defendant's arguments lack sufficient merit to warrant extensive discussion in a written opinion. R. 2-11-3(e)(2). We make only the following brief comments. Any prejudice that may have resulted from mentioning defendant's photograph as being a part of a criminal or penal record was appropriately addressed and cured by the trial court's strongly worded admonitions to the jury.

The testimony of the lay victim of the theft was sufficient to provide the jury with a rational basis from which they could determine the value of the items. State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987). Expert testimony is not necessary when, as here, the value of the items at issue is a matter within the common experience of the average juror.

Finally, a review of the Department of Corrections' public records on its official website: https://www6.state.nj.us/DOC_ Inmate/details?X=1046817&n=0 (last modified December 24, 2005) revealed that defendant was released from custody on October 20, 2005, after completing his entire eighteen-month sentence. Therefore, the question as to propriety of his sentence under State v. Natale, 184 N.J. 458 (2005), is moot.

 
Affirmed.

The State in its brief concedes that defendant would have been entitled to a new sentencing hearing under Natale. By declaring the issue moot, we do not, directly or indirectly, imply agreement with this conclusion.

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A-1672-04T4

January 10, 2006