STATE OF NEW JERSEY v. CLARENCE SANDERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3070-04T43070-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLARENCE E. SANDERS,

Defendant-Appellant.

___________________________________________________

 

Submitted March 1, 2006 - Decided March 24, 2006

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Law Division, Burlington County,

Ind. No. 03-04-0502.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald T. Thelander, Assistant Deputy

Public Defender, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor,

attorney for respondent (Louis F. D'Onofrio,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Clarence E. Sanders appeals from his conviction and sentence for third-degree theft by unlawful taking of personal property, N.J.S.A. 2C:20-3a, and fourth-degree criminal mischief by causing damage to the property of another, N.J.S.A. 2C:17-3a(1). A charge of receiving a stolen automobile, N.J.S.A. 2C:20-7a, was dismissed on the State's motion prior to trial. On June 21, 2004, defendant was sentenced to a four-year prison term on the theft charge and a concurrent nine-month term on the criminal mischief count. Appropriate fines and penalties were also imposed.

Giving the State the benefit of its evidence and the reasonable inferences flowing from that testimony, as reflected in the guilty verdicts, defendant was one of a group of men who attempted to steal the wheels and tires from a Cadillac Escalade parked on the street adjacent to the Fox Meadow Apartment Complex in Maple Shade during the early morning hours of November 23, 2002. A resident of the apartments saw the crime in progress and called the police. When the police arrived, the men fled. One of the officers chased defendant and found him hiding in a bush nearby. Upon being apprehended, defendant told the officer that a man "held a gun to him and made him take off the tires and rims." When later questioned, defendant stated "that he was not involved in what had taken place, and had no idea who committed the act."

Two tires and wheels from the Cadillac were found inside a gray van which was parked in the street adjacent to the Cadillac. The van had been stolen. The passenger's side window of the Cadillac had been broken. A stipulation was presented to the jury which indicated that the value of each set of tires and wheels was $600, "for a collective total of $1200 for two tires and two chrome rims." The stipulation also indicated that the cost to repair the Cadillac was, according to the owner's insurance company, $759.45.

Defendant presented two witnesses. Mark Williams testified that he and defendant had been drinking at a bar in Camden on the evening of November 22, 2002. Defendant met a woman at the bar and asked Williams to drop him off at the Fox Meadow Complex where the woman lived. Williams dropped defendant off a short distance from the apartments at 11:00 p.m. Defendant said he would walk the rest of the way. Carrie Parks testified that she met defendant at the bar. A group of seven to ten people left the bar at closing time, around 2:30 a.m., to continue "partying" at the Fox Meadow apartments. Parks drove alone, and defendant drove with another man. She and defendant spent some time together, with defendant leaving the apartments between 3:30 and 4:00 a.m.

On appeal defendant presents two arguments:

POINT ONE

THE FAILURE OF THE TRIAL COURT TO CHARGE THE JURY THAT IT HAD TO FIND, BEYOND A REASONABLE DOUBT, THAT THE VALUE OF THE GOODS STOLEN EXCEEDED $500, AND THAT THE AMOUNT OF DAMAGE TO THE MOTOR VEHICLE EXCEEDED $500, DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW, A FAIR TRIAL, AND THE RIGHTS TO A TRIAL BY JURY ON ALL THE ELEMENTS OF THE OFFENSE. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART I, PARS. 1, 9 AND 10. (Not Raised Below)

POINT TWO

THE DEFENDANT'S BASE TERM OF FOUR YEARS FOR THIRD-DEGREE THEFT IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

We find merit in defendant's first point, requiring a new trial. As a result, we have no need to address his sentencing argument.

Two intersecting lines of authority come together to compel a reversal. First, it is clear that the amount involved in a theft is an element of the crime, a conclusion flowing from N.J.S.A. 2C:20-2b(4), which provides that "(t)he amount involved in a theft . . . shall be determined by the trier of fact." See State v. Castaldo, 271 N.J. Super. 254, 258 (App. Div. 1994); State v. Childs, 242 N.J. Super. 121, 131 (App. Div.), certif. denied, 127 N.J. 321 (1990); State v. D'Amato, 218 N.J. Super. 595, 606-07 (App. Div. 1987), certif. denied, 110 N.J. 170 (1988); State v. Ball, 219 N.J. Super. 501, 511 (App. Div. 1987). As a result, the question of value must be submitted to the jury by means of appropriate instructions. Castaldo, supra, 271 N.J. Super. at 258; Ball, supra, 219 N.J. Super. at 511; State v. Burks, 188 N.J. Super. 55, 60 (App. Div. 1983). Here, the judge did not charge the jury with respect to its obligation to decide value. Indeed, other than reading the indictment, which referred to the stolen items as having an aggregate value of at least $500 and the damage as causing pecuniary loss between $500 and $2000, the charge did not refer to value at all. Nor did the judge refer to the stipulation in his charge.

Nevertheless, as we have noted, counsel stipulated to the value of the stolen items and the damage. This brings us to the second line of authority. It is settled that stipulations are not binding on the fact-finder. State v. Wesner, 372 N.J. Super. 489, 494 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005); AGS Computers v. Bear, Stearns & Co., 244 N.J. Super. 1, 5 (App. Div. 1990). Even if the evidence of value is uncontradicted, the issue of value must be presented to and resolved by the jury. Ball, supra, 219 N.J. Super. at 511; Burks, supra, 188 N.J. Super. at 58; State v. Fungone, 134 N.J. Super. 531, 535 (App. Div. 1975), certif. denied, 70 N.J. 526 (1976).

The failure to charge an element of the offense ordinarily constitutes reversible error. State v. Green, 86 N.J. 281, 288- 89 (1981). Indeed, we have held that failure to instruct a jury on value falls into that category of reversible error, Castaldo, supra, 271 N.J. Super. at 258, notwithstanding that the verdict sheet described the offense as charged in the indictment. Id. at 258-59. We are not persuaded that a different result should attain here. The failure to instruct the jury on the essential element of value, on both offenses, constitutes plain error,

R. 2:10-2, requiring a new trial.

Reversed and remanded for a new trial.

 

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A-3070-04T4

March 24, 2006