STATE OF NEW JERSEY v. D.A.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6474-02T46474-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.A.,

Defendant-Appellant.

________________________________

 

Submitted March 8, 2006 - Decided May 22, 2006

Before Judges Wefing and Wecker.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

No. 02-03-0540.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, of counsel and on

the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (John Henry Flammer III,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of failing to register as a sex offender, a crime of the fourth degree, N.J.S.A. 2C:7-2(a) and -2(d). The trial court sentenced defendant to eighteen months in prison. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

In 1996, defendant pled guilty to one count of criminal sexual contact, N.J.S.A. 2C:14-3. Defendant's conviction triggered his obligation to register as a sex offender under N.J.S.A. 2C:7-2. Defendant and his wife were living in Absecon at the time, and he registered as required. They later moved to Galloway Township, and defendant again registered. They also moved several times within Galloway and, with each move, defendant personally re-registered his change of address.

In the summer of 2000, defendant moved to the Sandpiper Apartments at 5303 Harding Highway in Mays Landing in Hamilton Township and he registered in accordance with the statute. At the time of this initial registration in Hamilton, he was working at Egg Harbor Yachts. He subsequently changed his employment to Post Marine Company in Mays Landing and, in June 2001, he registered that change of employment with the township. In August 2001, defendant moved within the township to the Plaza Motel at 6090 Black Horse Pike. Defendant was charged with failing to re-register that change of address with the township.

Defendant and his wife testified. Defendant lacked a driver's license, and his wife would drive him to the police station to attend to the registration requirements. Defendant's wife testified that on several occasions when they arrived at the Hamilton Township police station, Carol Winterbottom, the individual in charge of handling such registrations for the township, was not available. Defendant's wife testified that on one occasion when they were in the station, she told Ms. Winterbottom that they were thinking of moving within the township, and she asked whether they would have to return in person to re-register. She said that Ms. Winterbottom told her that as long as they remained within the township, it would be sufficient to provide telephone notification of the new address. Defendant testified to the same effect, adding that he did call and inform Ms. Winterbottom of his new address. Ms. Winterbottom testified that she could recall no such inquiry and that in any event she would never respond that telephone notification would suffice but would insist on the registrant appearing in person.

The jury verdict sheet contained one statement, that the defendant "did knowingly fail to register a change of address with the local police department 10 days prior to the move as required." To this, the jury responded that it found defendant guilty.

On appeal, defendant raises the following arguments:

POINT I THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE

POINT II THE 18 MONTH TERM IMPOSED AT SENTENCING WAS UNCONSTITUTIONAL SINCE IT EXCEEDS THE MAXIMUM SENTENCE AUTHORIZED BY THE JURY'S VERDICT

POINT III THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE

Defendant's first argument revolves entirely around his contention that his testimony and that of his wife, that Ms. Winterbottom assured them defendant could provide telephone notification of his new address, was more credible than Ms. Winterbottom's contrary testimony. He does not contend that telephone notification did comply with the statutory requirements, merely that he was informed that it did.

We consider it apparent from the jury's verdict that it rejected the testimony of defendant and his wife. The trial court clearly instructed the jury that in order to find defendant guilty, it had to find beyond a reasonable doubt that defendant knew of his obligation to re-register as a sex offender and knowingly failed to comply. If the jury had accepted the defense testimony, it could not have reached the verdict that it did.

Defendant moved for a new trial prior to his sentencing, at which time he argued that the verdict should be set aside on the grounds that it was against the weight of the evidence. Such a motion is governed by R. 3:20-1, which directs that a trial judge may not set aside a jury verdict as against the weight of the evidence "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law."

Defendant's argument on appeal is governed by R. 2:10-1, which directs that a trial court's ruling on a motion for a new trial "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law."

[A] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown. Our scope of review is limited to a determination of whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record. Moreover, we will give deference to the trial judge's feel for the case since he presided over [it] . . . and had the opportunity to observe and hear the witnesses as they testified.

[State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004) (quotation marks and citations omitted).]

In denying defendant's motion for a new trial, the trial court stated:

A lot of these cases come down to credibility and it was obvious they did not believe D.A.'s story and for me to substitute my judgment and say that clearly and convincingly there would appear to be a manifest injustice . . . I cannot do so because that would put me in as the 13th juror to say that I believe D.A. and the other 12 people believe Ms. Winterbottom. Quite frankly, if I had to judge this case, I would agree with the jury bsed on the evidence that I heard and based on my assessment of the credibility of the people who testified.

Further, after formally denying defendant's motion, while defendant's counsel was arguing in favor of a light sentence, the trial court made the following comment to defendant's attorney:

You tried a really good case and quite frankly, you may have even had a chance to -- to win this case until he testified. When he testified that was the end of the ball game because of his credibility.

Defendant's argument that the verdict is against the weight of the evidence is unavailing.

Defendant's final arguments are directed to the eighteen-month sentence imposed by the trial court. At the time of sentencing, defendant had 487 days of jail credits. Defendant has completed his sentence, and his arguments are thus moot.

 
Affirmed.

Defendant and his wife testified that this occurred in 1996; according to the presentence report, defendant pled guilty in 1994 and was sentenced in 1995. For purposes of this opinion, we have selected the date that was before the jury.

(continued)

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6

A-6474-02T4

RECORD IMPOUNDED

May 22, 2006