STATE OF NEW JERSEY v. SAMUEL WILSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1923-03T41923-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMUEL WILSON,

Defendant-Appellant.

_______________________________________

 

Submitted September 26, 2006 - Decided October 27, 2006

Before Judges Grall and Lisa.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment Nos.

02-07-0918-I and 01-04-0497-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Anne Milgram, Acting Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

The grand jurors for Union County charged defendant Samuel Wilson with receiving a stolen car, a crime of the third degree. N.J.S.A. 2C:20-2b(2)(b); N.J.S.A. 2C:20-7. The first jury to consider the evidence was unable to reach a verdict. A second jury found defendant guilty. The judge sentenced defendant to a five-year term of incarceration, two without possibility of parole. He also imposed a $50 VCCB assessment, a $75 SNSF assessment and a $30 LEOTEF penalty. In addition, the judge revoked a term of probation defendant was serving for third-degree aggravated assault and sentenced him to a five-year term of incarceration for third-degree aggravated assault. N.J.S.A. 2C:45-3a(4), b.

Defendant filed a notice of appeal. On defendant's motion, we remanded for a hearing on his claim that newly discovered evidence warranted a retrial. After conducting a hearing, the trial judge denied that application.

Defendant challenges his conviction for receiving stolen property, the sentences imposed and the denial of his motion for a new trial. He also contends that the judge erred in denying his pretrial motion to exclude evidence of statements he made prior to his arrest.

Defendant's challenge to his conviction is based on the Supreme Court's decision in State v. Hodde, 181 N.J. 375 (2004), which was issued after the date of defendant's trial. We agree that Hodde requires reversal of defendant's conviction for receiving stolen property.

In Hodde, the Court held that "when the State prosecutes a defendant for receipt of stolen property under N.J.S.A. 2C:20-7, it must prove that the property involved was actually stolen." Id. at 384. "Because the trial court did not advise the jury of the need to determine that the property was actually stolen, but instead instructed the jury that the State had no burden to prove that fact, [the Court concluded that] defendant's conviction must be reversed and the matter remanded for a new trial." Id. at 385. The judge in this case gave a jury instruction that is, in relevant part, identical to the instruction the Court found deficient in Hodde.

Although the instruction given in this case was consistent with the Model Jury Charge in effect at the time and defendant did not object to the charge, the jury was misinformed about an essential element of the crime. Id. at 384. In Hodde, the Court held that the same instruction amounted to plain error. Ibid.

We reject the State's claim that Hodde established a new rule of law that should not be applied to the instruction given at defendant's trial. Hodde overrules a decision of this court that holds that the State need not prove that the property is stolen in order to prove the elements of N.J.S.A. 2C:20-7. See Hodde, supra, 181 N.J. at 383-84 (discussing State v. Bujan, 274 N.J. Super. 132, 133 (App. Div. 1994)). However, a judicial "decision [that makes] explicit elements of [an] offense that were implicit in the statute but had not been properly charged to the jury [does] not create a new rule of law" for purposes of retroactivity analysis. State v. Afanador, 151 N.J. 41, 58 (1997). Such a decision conforms the jury instruction to the statutory definition intended by the Legislature; it neither redefines the elements of the statutory crime nor implicates the court's authority to limit the retroactive effect of its decision. See id. at 57 (quoting and discussing State v. Alexander, 151 N.J. 41, 57 (1997)). Thus, such decisions are generally applied in accordance with "the traditional view that the overruling of a judicial decision is retrospective in nature." See Darrow v. Hanover Twp., 58 N.J. 410, 413 (1971); see, e.g., Afanador, supra, 151 N.J. at 58-59 (holding that "even if [a decision clarifying the elements of the "kingpin" offense] were thought to be a new rule, it would be applied retroactively").

Even if we were to treat the holding in Hodde as a "new rule of law," principles governing retroactivity would, at a minimum, require us to apply it in cases on direct appeal. See Afanador, supra, 151 N.J. at 58-60 (concluding that general principles of retroactivity would require application of a decision clarifying the essential elements of a crime on a timely application for post-conviction relief). The "retroactivity determination often turns . . . on the court's view of what is just and consonant with public policy in the particular situation presented." State v. Natale, 184 N.J. 458, 493 (2005) (internal quotations and citation omitted). Where the purpose of the new rule is clarification of a jury instruction relevant to guilt, the reliability of the factfinding that led to the conviction is implicated and retroactivity is favored. Afanador, supra, 151 N.J. at 59; see Natale, supra, 184 N.J. at 493 (noting that "considerations of fairness strongly favor retroactive application" when the new rule is related to the accuracy of "guilty verdicts in past trials").

In Natale, the Supreme Court held that new rules, which were established "to bring our sentencing code into compliance with the dictates of the Sixth Amendment," should be applied to cases pending on appeal, although those rules were unrelated to the accuracy of the factfinding. 184 N.J. at 493-94. We see no basis for giving a shorter reach to a decision addressing a jury instruction relevant to the elements essential for a finding of guilt.

Accordingly, we reverse defendant's conviction and remand for a new trial. Because the revocation of defendant's probationary sentence was based upon that conviction, we reverse that determination as well. In light of those dispositions, we need not consider defendant's objections to his sentence or his claim that the judge erred in denying his motion for a new trial. We must, however, consider defendant's claim that the judge erred in denying his motion to suppress the statements he allegedly made prior to his arrest for receiving stolen property.

Detective Kenneth Hagemann of the Roselle Police Department was the only witness at the hearing on defendant's motion to suppress. On March 15, 2002, Hagemann noticed a silver BMW parked on the wrong side of the street in an area of Roselle Park known for narcotics trafficking. Hagemann parked his unmarked car behind the BMW and got out to write a ticket for the parking violation. As he approached the BMW, he did not see a license plate on the rear of the car.

Defendant was seated in the driver's seat. Hagemann asked him for his driver's license, registration and insurance card. Defendant gave Hagemann his license and told him that the registration was affixed to the rear window. Because Hagemann could not read the registration through the darkly tinted window, he asked defendant to get out of the car, opened the rear door and removed the registration.

The name on the registration was Thomas Wright, not defendant's name. Hagemann asked defendant whether he knew who owned the car. Defendant told him that the owner's name was "Tom," but said he did not know Tom's surname. Hagemann's "suspicions" were "raised." He walked to the front of the BMW to look at the vehicle identification number (VIN). As he did, he spoke with defendant "about things," like the weather. Defendant told him he owned a "financial corporation" and said he had rented the car from a "crackhead" in Newark for $140 to $150. Detective Hagemann checked the VIN and learned that the car had been reported stolen. He placed defendant under arrest.

Judge Triarsi credited Hagemann's testimony and concluded that defendant's statements were admissible. He reasoned that the officer had a right to ask the driver of the illegally parked car for his license, registration and insurance card and the duty to make further inquiry about the owner when he saw different names on the license and registration. Judge Triarsi concluded that the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), were not warranted in the context of this routine and brief detention of the driver of an illegally parked car that bore no license plate. He further concluded that defendant's disclosure about the person who rented him the car was not the product of interrogation and was voluntarily made.

Defendant contends that when Detective Hagemann decided to check the VIN, he commenced a criminal investigation and employed unfair means by engaging defendant in conversation. Our review of the record convinces us that this argument lacks sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2).

Judge Triarsi's factual findings are supported by sufficient credible evidence, stated clearly, correlated with relevant legal conclusions and binding on this court. See State v. Locurto, 157 N.J. 463, 470-71 (1999). The judge's conclusion that defendant volunteered information about the car rental precludes any claim that the statement was the product of unfair police tactics. Although defendant was detained during this brief action to enforce the parking and motor vehicle laws, Miranda warnings were not required before routine questioning that was related to the enforcement action and necessary to dispel or confirm the suspicion raised by the mismatched credentials defendant presented. See Berkemer v. McCarty, 468 U.S. 420, 436-41, 104 S. Ct. 3138, 3148-51, 82 L. Ed. 2d 317, 331-34 (1984); State v. Toro, 229 N.J. Super. 215, 220 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989).

Reversed and remanded for a new trial.

 

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A-1923-03T4

October 27, 2006