STATE OF NEW JERSEY v. ROY MATHIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2802-04T42802-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROY MATHIS,

Defendant-Appellant.

__________________________________________________

 

Submitted December 8, 2005 - Decided January 17, 2006

Before Judges Stern and Lihotz.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 04-04-1371.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael B. Jones, Assistant

Deputy Public Defender, 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 was convicted at a bench trial of theft from the person as a lesser included offense to robbery (count one), and acquitted of weapons offenses involving his use of a shovel during the theft (counts two and three). He was sentenced to a presumptive four year term.

On this appeal defendant argues:

POINT I THE JUDGE ERRED IN FINDING THE DEFENDANT

GUILTY OF THEFT FROM THE PERSON WHEN

THE JUDGE'S FINDINGS OF FACT EQUALLY

SUPPORTED THEFT BY UNLAWFUL TAKING OR

THEFT BY DECEPTION.

POINT II DEFENDANT'S SENTENCE IS MANIFESTLY

EXCESSIVE, DOES NOT FOCUS ON THE

OFFENSE AND VIOLATES THE PRECEPTS OF

STATE V. DALZIEL.

Our careful review of the record convinces us that these issues are clearly without merit and warrant only the following comment in a written opinion. R. 2:11-3(e)(2).

The victim, Alan Alswang, testified that on December 6, 2003, defendant approached him on a street in Orange, and asked him for a dollar for bus fare. As Alswang was about to give him a dollar, defendant "grabbed" the wallet out of his hand, took the $53.00 that was in the wallet, and ran. According to Alswang, defendant threatened him with a shovel he was carrying after a recent snowstorm; and Alswang, who recently had titanium rods surgically implanted in his leg, unsuccessfully tried to chase him.

Defendant testified on his own behalf, and stated he had known Alswang for "[a]bout four years" before the events of December 6, 2003. According to defendant, Alswang asked him "to get something [drugs] that he wanted that he couldn't do on his own", and gave defendant $50.00 to purchase $30.00 worth of drugs for him because he could "barely walk" after his leg surgery. Defendant stated that Alswang had been "an old customer" of his. Defendant further testified:

THE WITNESS: Yes. We both walked to Tremont together, and he reached in his wallet an[d] gave me a 50-dollar bill only, and I told him to wait in front of a specific building that was on Tremont.

Q When he gave the money to you, your intention was to come back?

A When I got -- I got halfway up the block -- he already owed me 20, and now said pay me more money for doing a favor and I didn't come back.

Q So, at that point you -- so, you never came back with what you said you would do?

A That's correct.

Q Did you ever threaten Mr. Alswa[n]g?

A I never threatened him at all.

Q Did you take the money from his person?

A No, sir. No, I didn't.

On cross-examination, defendant added that after Alswang gave him the money, defendant "walked away with the intention of going to buy narcotics" but then decided "to keep this money."

The trial judge found that "parts of" Mr. Alswang's testimony were credible. The judge was satisfied "beyond a reasonable doubt there was no robbery", but also "satisfied beyond a reasonable doubt" that defendant knew Alswang was disabled and kept the money, and "that the defendant did, in fact, commit a theft from the person of Allen [sic] Alswa[n]g." Accordingly, the judge found defendant guilty of theft from the person. In rendering his decision, the judge added that it "makes no difference [whether] he grabbed the money and ran or he took the money knowing ful[l ]well that he was going to keep the money and not comply with this alleged transaction."

In fact, it does make a difference whether defendant "grabbed the money" because he was convicted of third degree theft. While a defendant charged with one type of theft may be convicted of another type, see N.J.S.A. 2C:20-2; State v. Talley, 94 N.J. 385, 389-92 (1983); see also State v. Smith, 136 N.J. 245, 251-52 (1994); State v. Dixon, 114 N.J. 111, 114 (1989), here defendant was found guilty of a third degree crime only because the money was taken "from the person of the victim," N.J.S.A. 2C:20-2(b)(2)(d). Theft of $53.00 is otherwise a disorderly persons offense. N.J.S.A. 2C:20-2(b)(3).

However, as the trial judge found defendant guilty of theft from the person, the concept of double jeopardy does not preclude the judge from making supplemental or further findings after a bench trial to sustain that finding, which was based on sufficient evidence. Stated differently, a reversal of the conviction would not require the trial judge to retry the case, as he could merely revise his inaccurate statement and make supplementary findings based on the existing record after reversal. See, e.g., Tibbs v. Florida, 457 U.S. 31, 39-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652, 660-61 (1982); In re J.R., 244 N.J. Super. 630, 635 (App. Div. 1990); see also State v. Smith, 253 N.J. Super. 145, 149 (App. Div. 1992). This is so even if the judge's original findings - which could have been conclusionary, see State v. Locurto, 157 N.J. 463, 470 (1999); R. 1:7-4(b); R. 2:5-1(b); see also In re J.R., supra, 244 N.J. Super. at 635 - can be said to have been inadequate to sustain the third degree conviction. See, e.g., State v. Freeman, 324 N.J. Super. 463, 468-70 (App. Div. 1999)(regarding lesser included theft offenses); State v. Smith, supra, 253 N.J. Super. at 147-49 (detailing fact finding at bench trials).

In denying defendant's motion for judgment of acquittal and/or new trial, the trial judge concluded:

Counsel, the case was not clear at the time the verdict was returned. I'm satisfied that beyond a reasonable doubt that on the date of this alleged occurrence December 2003, December 6th, if the victim Mr. Alan Swag [sic] was in a sandwich shop. That while there -- this seems to be corroborated by both defense and state's version. Both he and Mr. Mathis were in the store. That while there, Mr. Mathis in fact saw Mr. Alan Swag [sic] receive $50. He was aware that he had the money. I'm further satisfied beyond a reasonable doubt that thereafter both Mr. Alswang and Mr. Mathis were just outside of the store when they left at the counter. The defendant indicated that Mr. Alan Swag [sic] g[a]ve him the money to purchase drugs. He took the money, and rather than purchasing drugs he didn't -- he started up Tremont Avenue, or something, and kept the money without buying drugs and went home. The victim on the other hand indicated that outside the store he met Mr. Mathis. Mr. Mathis asked him for a dollar for bus fare, I believe it was. Mr. Alswang took out his wallet. It contained $53 and some other money. In fact, Mr. Mathis snatched the money -- the wallet -- money from Mr. Alswang and ran. I did have the opportunity to look at the demeanor of both Mr. Mathis when he testified and Mr. Alswang. It was clear from the testimony that Mr. Alswang could be described fairly, fairly exaggerated, that is, he indicated he was trained in a -- weapons, etcetera. I think, in fact, his testimony when reviewed it was clear to me that he was exaggerating. He indicated to the Court that after the money was grabbed from his hand, the defendant had a snow shovel in his hand, and when asked what was happening, Mr. Alswang testified that Mr. Mathis indicated by holding up the shovel -- I'll crack your fucking head open. He then ran away. He held the shovel in a threatening manner. I found that to be an exaggeration. I'm well satisfied that the money was snatched from his hand. I found Mr. Mathis' version not to be credible at all. It came down to an issue of credibility, and my finding as to credibility was that, in fact, that Mr. Mathis took the money, snatched the wallet from the hands of Mr. Alswang. I did not believe the issue -- follow-up that seemed to be added provid[ing], if you will that he threatened him with a shovel, and Mr. Alswang ran after him, and he was an expert in weapons, etcetera.

Therefore, I as a finder of the fact I can accept all of the testimony, part of the testimony or none of the testimony. I'm satisfied to accept and believe the -- beyond a reasonable doubt that the wallet was taken from the hands of Mr. Alan Swag [sic]. I do not accept at all Mr. Mathis' version that he was given the money to buy drugs, and do not accept Mr. Alswang's version that he was an expert in arms, and was in fact threatened with a shovel.

As a finder of fact, I'm satisfied that I have considered the lesser included offenses, and in fact I have found Mr. Mathis guilty of the lesser included offense theft from the person. I'm satisfied this was not a theft by deception. Therefore, your motion for judgment notwithstanding the verdicts and/or slash a - new trial was denied.

Accordingly, given the judge's ultimate findings, there is no basis on which to disturb the conviction for third degree theft from the person.

The defendant was sentenced to the presumptive term, although this was the fifth time he was being sentenced for an indictable offense and he was qualified for a sentence as a persistent offender. Therefore, we find no basis on which to modify the sentence imposed.

 
The judgment is affirmed.

Although attributed to the prosecutor in the transcript, there is no claim or doubt these are the words of the judge.

(continued)

(continued)

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A-2802-04T4

January 17, 2006