STATE OF NEW JERSEY v. FAITH S. PENALVER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3820-03T43820-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FAITH S. PENALVER,

Defendant-Appellant.

______________________________________________________________

 

Submitted November 30, 2005 - Decided April 4, 2006

Before Judges Wecker and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Ind. No.

01-12-2255.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jean B. Bennett, Designated

Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Edward J. Quigley,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

In a four-count indictment, defendant Faith Penalver and her son, Stephen Penalver, were both charged with four second-degree crimes: (1) second-degree aggravated arson "by starting a fire with the purpose of collecting insurance for the destruction or damage [of a home owned by Faith Penalver], under circumstances which recklessly placed Eric Plumb and/or Jack Bowker in danger of death or bodily injury," N.J.S.A. 2C:17-1(a)(3) (count one); (2) second-degree conspiracy to commit the crime of aggravated arson, N.J.S.A. 2C:5-2, and N.J.S.A. 2C:17-1(a)(3); (3) second-degree theft by deception, N.J.S.A. 2C:20-4 (count three); and (4) second-degree conspiracy to commit the crime of theft by deception, N.J.S.A. 2C:5-2, and N.J.S.A. 2C:20-4(a) (count four).

The jury was provided with instructions on each of the indicted charges as well as lesser included offenses, and second-degree attempted theft by deception. The jury's verdict was as follows: (1) On count one, both defendants were found not guilty of second-degree aggravated arson, but both were found guilty of third-degree arson; (2) on count two, both defendants were found not guilty of second-degree conspiracy to commit aggravated arson, but both were convicted of third-degree conspiracy to commit arson; (3) on count three, both defendants were found guilty of second-degree attempted theft by deception and both were also found guilty of third-degree theft by deception; and (4) on count four, both defendants were found not guilty of second-degree conspiracy to commit theft by deception, but both were found guilty of third-degree conspiracy to commit theft by deception.

Prior to sentencing, the court determined that the third-degree theft by deception conviction was consistent with the evidence because defendant and her son, Stephen, actually received $10,000 from the insurance company for "living expenses pending the completion of an investigation of the fire." The judge also found that the second-degree attempted theft by deception was factually distinguishable and independent of defendant's convictions for third-degree theft by deception and third-degree conspiracy to commit theft by deception because the State proved beyond a reasonable doubt that defendant and her son had attempted theft by deception in excess of $75,000 when they submitted insurance claims totaling approximately $160,000.

At sentencing on September 5, 2003, the convictions for third-degree conspiracy to commit theft by deception and third-degree theft by deception were merged into the conviction for second-degree attempted theft by deception. After noting that Stephen, the son, "was really the motivating force," the trial court treated the second-degree conviction as though it were a third-degree crime, and it imposed a four-year term of imprisonment. Defendant's third-degree conspiracy to commit arson conviction was merged into the conviction for third-degree arson, and defendant was sentenced as if it were a fourth-degree crime, to a concurrent nine-month term.

On appeal, defendant makes the following arguments:

POINT I

DEFENDANT'S CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE TRIAL COURT ERRED IN DENYING DEFENDANT HER MOTION FOR A JUDGMENT OF ACQUITTAL AND A NEW TRIAL.

POINT II

THE [TRIAL] COURT['S] CHARGES TO THE JURY REGARDING AGGRAVATED ARSON, ACCOMPLICE LIABILITY AND CONSPIRACY WERE IMPROPER.

POINT III

PROSECUTORIAL MISCONDUCT PREJUDICED THE DEFENDANT AND DENIED HIM HIS [sic] RIGHT OF DUE PROCESS OF LAW.

POINT IV

THE COURT ERRED WHEN IT FAILED TO DECLARE A MISTRIAL.

POINT V

THE SENTENCE IMPOSED BY THE COURT BELOW IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

Based on our review of the record and applicable law, we conclude that all of defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nonetheless, we add the following comments.

As to Points I and II, the State presented expert testimony that the fire had been deliberately set in four separate locations in defendant's home. Neither defendant nor her son were present at home when the fire was reported at approximately 3:11 a.m., and telephone records confirmed that Stephen Penalver used his cell phone to call his mother at 3:06 a.m. on the morning of the fire. The State theorized that Stephen actually started the fire as part of defendants' plan to file an inflated insurance claim for items allegedly destroyed in the fire. The State also established that approximately three weeks prior to the fire, defendants had moved many of their belongings, including personal items, to a storage facility. After obtaining a search warrant for the storage facility, the police inventoried the property that defendants had placed in storage, and the jury was able to compare defendants' insurance loss claims with the list of items that the police seized from the storage facility.

Our review of the record convinces us that the jury was properly instructed and that the trial court did not err in denying defendant's motion for a judgment of acquittal and a new trial. The State submitted strong circumstantial evidence to support the convictions, and there is no basis to conclude there was a miscarriage of justice. R. 2:10-1.

Defendant argues for the first time in Point III that "the prosecutor improperly interjected his own opinion into the trial proceedings." We conclude, however, that the prosecutor's summation did not have the capacity to deprive defendant of a fair trial. State v. Daniels, 182 N.J. 80, 95-96 (2004); State v. Ramseur, 106 N.J. 123, 322-23 (1987).

With respect to Point IV, defendant claims that the trial court erred when it failed to declare a mistrial after the State's witness, Officer Singer, testified that defendant chose not to speak to him after she was advised of her Miranda rights. Out of the presence of the jury, the prosecutor explained that he did not receive the answer he expected from the witness because defendant had consistently denied "she was involved in everything."

When defendant was arrested, she was advised of her constitutional right to remain silent, and she was under no obligation to provide exculpatory information, or to make any statement whatsoever, to the authorities. State v. Deatore, 70 N.J. 100, 115 (1976). It follows therefore that the State is prohibited from using a defendant's silence at trial "when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody." State v. Muhammad, 182 N.J. 551, 569 (2005) (quoting Deatore, supra, 70 N.J. at 108-09). The trial judge recognized that the challenged testimony was inadmissible, and he asked defense counsel if he wanted an immediate curative instruction. Defendant's attorney requested the curative instruction at the end of the case, and the jury charge included the following:

Det[ective] Eric Singer testified that on September 6 of 2001 he read Faith Penalver's Miranda Rights to her and she chose not to speak to him. She has an absolute right under the United States and the New Jersey Constitution[s] not to speak and you are to draw no adverse inference from her silence.

In fact the first Miranda right that was read to her states, "You have the right to remain silent" and she exercised that right, which she has a right to do. But again, you draw no adverse inference from the fact that she exercised her constitutional rights.

A trial court's decision to grant a mistrial is discretionary, State v. Winter, 96 N.J. 640, 647 (1984), and will not be disturbed absent a clear abuse of discretion. "A mistrial motion is granted only when the trial court finds that as a result of error manifest injustice would result from continuation of the trial." State v. Hogan, 297 N.J. Super. 7, 14 (App. Div.), certif. denied, 149 N.J. 142 (1997). When the error is curable by a cautionary jury instruction, it is not an abuse of discretion for the trial judge to choose that course of action. State v. Winter, supra, 96 N.J. 640, 646-48.

The trial judge was in the best position to gauge the impact of the inadmissible evidence on the jury, and we are satisfied that the matter was handled appropriately by the trial judge--there was no abuse of discretion and the inadmissible testimony was harmless beyond a reasonable doubt. State v. Bakka, 176 N.J. 533, 547-48 (2003); State v. Spruell, 121 N.J. 32, 42-43 (1990); State v. Macon, 57 N.J. 325, 340-41 (1971); R. 2:10-2.

Lastly, defendant contends that her four-year sentence for a second-degree crime was excessive. There is no merit to this argument. Defendant's sentence does not represent a miscarriage of justice or shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Jarbath, 114 N.J. 394, 401 (1989); State v. Ghertler, 114 N.J. 383, 387-88, 393-94 (1989); State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

 

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A-3820-03T4

April 4, 2006