STATE OF NEW JERSEY v. DONTA WOODS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1790-04T41790-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONTA WOODS,

Defendant-Appellant.

____________________________

 

Submitted January 31, 2006 - Decided March 21, 2006

Before Judges Coburn and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, 03-12-2420-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Arthur L. Marchand, Designated

Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Tara Wilson, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Donta Woods was convicted of conspiring with co-defendant Robert Murphy to commit theft, contrary to N.J.S.A. 2C:5-2 (count one), and committing third-degree theft of movable property, contrary to N.J.S.A. 2C:20-3(a) (count three). The trial judge merged counts one and three and sentenced defendant to a five-year term of imprisonment with a two and one half-year period of parole ineligibility.

Co-defendant Robert Murphy entered a guilty plea to conspiracy to commit burglary as part of a plea bargain, which included testifying against defendant. Murphy testified that on July 31, 2003, he picked up defendant at a friend's house in Union Beach and they decided to go to the municipal public works building in search of scrap aluminum to sell to a scrap yard. When they arrived, Murphy parked his truck in front of the locked chain link gates. Defendant managed to slide through the gate and take some street signs. Defendant and Murphy were loading the signs into Murphy's truck when Detective Beacham arrived and saw them throwing something into the back of the truck. When the two men saw the officer, they jumped into the truck as if to pull away. Detective Beacham pulled in front of the truck in order to block the way. He approached and spoke to Murphy, who said the street signs were lying outside the fenced-in area and that he and defendant thought they were discarded as garbage. Defendant repeated the same story. However, Beacham's suspicions were aroused when he saw mud on defendant's back and shoulders and dirt on Murphy's hands and shoes.

Beacham then checked the gate and noticed that the gate could be moved to enable a person to slide through. He then placed both men under arrest. At the police station, Murphy confessed and said defendant entered the fenced-in area and took the signs.

Defendant appeals his conviction and sentence and alleges the following:

POINT I - THE TRIAL JUDGE ERRED BY ALLOWING TESTIMONY FROM A WITNESS THAT WAS NOT ON THE STATE'S WITNESS LIST IN VIOLATION OF R. 3:13-3(c)(6).

POINT II - THE SENTENCE IMPOSED BY THE TRIAL COURT JUDGE WAS MANIFESTLY EXCESSIVE AS THE JUDGE IMPROPERLY WEIGHED THE AGGRAVATING AND MITIGATING FACTORS WHEN [DETERMINING] DEFENDANT'S SENTENCE.

POINT III - IMPOSITION OF THE MAXIMUM TERM VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below.)

POINT IV - THIS CASE MUST BE REMANDED TO THE TRIAL COURT TO CORRECT THE JUDGMENT OF CONVICTION TO ACCURATELY REFLECT THE CRIMES THAT DEFENDANT WAS CONVICTED OF.

Thomas Luminoso, the Union Beach Public Works Director, was permitted to testify and identified the signs as municipal property in a public works truck parked inside the locked gate at the time of the offense and gave an estimated value of the signs of approximately $1,500. Luminoso's name was not provided on the witness list submitted to defendant prior to trial, but his name appeared in the indictment and in the police reports which were provided in discovery.

A trial judge has broad discretion in determining appropriate relief if a party fails to comply with discovery, and a ruling will be upheld absent a showing of an abuse of discretion. State v. LaBrutto, 114 N.J. 187, 205 (1989); State v. Toro, 229 N.J. Super. 215, 223 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989). There was no mistaken exercise of discretion in permitting Luminoso to testify, especially since there was notice of his potential testimony and the obvious error of omission by the State.

Defendant argues and the State concedes that defendant is entitled to re-sentencing under State v. Natale, 184 N.J. 458 (2005). Moreover, both the State and the defense agree that judgment of conviction should be amended to reflect the conviction of conspiracy to commit theft and theft of movable property in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3(a).

Affirmed in part. Reversed and remanded in part.

 

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A-1790-04T4

March 21, 2006