STATE OF NEW JERSEY v. ERIC N. EVANGELISTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0003-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC N. EVANGELISTA, a/k/a

ERIC NICHOLAS VANGELISTA,

Defendant-Appellant.

______________________________________________

July 26, 2011

Submitted February 28, 2011 - Decided

Before Judges Kestin and Newman.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-12-3929.

Yvonne Smith Segars, Public Defender, attorney for appellant (Nathaniel Jones, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Eric N. Evangelista, appeals from a judgment convicting him of theft, N.J.S.A. 2C:20-3; and sentencing him to a five-year probationary term conditioned on thirty days in the Camden County Jail, with a thirty-day jail credit. The court ordered $25,000 in restitution. We affirm.

The matter was tried without a jury. A series of witnesses testified for the State; none were presented by defendant. The court found each of the witnesses "to be credible and believable under the circumstances."

Defendant's employer had been engaged to make some improvements in the victims' home. The project involved the installation of shelving in the pantry, and cabinet trim in the kitchen and laundry room, all on the main floor of the house. Defendant was a member of the four-person work team. He had been working for this employer for several weeks. The employer had completed several projects for these homeowners in the past, engendering their trust and confidence.

On their return at the end of the day, the homeowners noted, throughout the house, in carpeted rooms and on area rugs, impressions of footprints from sneakers or work boots, including in areas on the second floor. All of the carpets and rugs had been freshly vacuumed that morning. Several days later, the homeowners discovered that several items of jewelry were missing from the home. On the day of the work project, one of the homeowners had returned briefly during his lunch hour. "When I walked into the house, I yelled 'yo', or something to see where they were. And a guy come running down the steps . . . . from the second floor." He could not identify that person.

The employer and the other two workmen were among the witnesses at trial. One of the workmen testified that defendant had wandered about during the time they were in the home. At one point, defendant displayed to that co-worker a firearm he had found in a zippered case stored under a television cabinet. Defendant, in a statement given to the police -- that was received in evidence without objection -- admitted to wandering about throughout the home and examining dressers and drawers, but adamantly denied taking anything from them. The employer also testified that when he learned, a few days after the job, that some jewelry was missing, he noted that defendant's toolbox was missing from its usual place in the trailer the work crew had used. The third workman-witness also testified that defendant's toolbox was missing from its usual place.

In addition to its credibility findings, the trial court found the circumstantial evidence in the matter to be persuasive. It found "that the State has proven beyond a reasonable doubt the fact that [defendant] was on the property on that date." The court found, specifically, that

there was an individual in places that the individual should not have been under the circumstances.

And everything, including the statement of [defendant,] looks to him.

The . . . fact in my mind that is totally persuasive, and really links everything that I think needs to be linked[,] is when one looks at the fact that he was in a drawer where the gun case was, and opened the gun in the presence of a co-employee, that to me speaks volumes.

It speaks volumes to the fact . . . he was in a place that he should not have been, and . . . not only was he in a place he shouldn't have been, he was looking in drawers that he should not have been looking into.

It is certainly supportive, and logic dictates that one can consider the toolbox issue that it was there one moment, and not thereafter.

When one looks at the elements needed to be proven by the State beyond a reasonable doubt . . . and applying the factors to the law, I am satisfied beyond a reasonable doubt that the State has met its burden of proof beyond a reasonable doubt for me to enter a finding of guilty [of theft of property] . . . . over $500.

On appeal, defendant raises the following arguments for our consideration, all designated as "not raised below" and all asserting "plain error":

POINT I

IT WAS PLAIN ERROR FOR THE JUDGE TO CONVICT [DEFENDANT] OF THEFT WHEN THE EVIDENCE PRESENTED FAILED TO PROVE ALL THE ELEMENTS OF THE CRIME[.]

POINT II

IT WAS PLAIN ERROR FOR THE COURT TO MAKE ITS FINDING OF GUILT BASED UPON UNRELIABLE EVIDENCE WHEN THE CRIME SCENE WAS NOT PROPERLY SECURED AND THERE WAS CONFLICTING WITNESS TESTIMONY[.]

POINT III

IT WAS PLAIN ERROR FOR THE PROSECUTOR AND JUDGE TO TRY [DEFENDANT] FOR TRESPASS AND BURGLARY WHEN HE WAS NOT GIVEN FAIR NOTICE UNDER THE THEFT STATUTE[.]

POINT IV

THE INDICTMENT IN [DEFENDANT]'S CASE FAILED TO ALLEGE ESSENTIAL FACTS AND OFFENSES THAT W[]ERE INFERRED BY THE JUDGE AND PROSECUTOR BUT NOT CHARGED IN THE INDICTMENT . . . .

POINT V

THE PROSECUTOR FAILED TO PRESENT SUFFICIENT CIRCUMSTANTIAL OR DIRECT EVIDENCE AGAINST [DEFENDANT] TO CONVICT HIM OF THEFT[.] IT WAS PLAIN ERROR FOR THE JUDGE TO FIND HIM GUILTY[.]

POINT VI

THE COURT FAILED TO APPLY A MITIGATING FACTOR SUPPORTED BY CREDIBLE EVIDENCE AND DID NOT EXPLAIN IN DETAIL THE REASONS FOR APPLYING AGGRAVATING FACTORS . . . .

We have examined the record in the light of the parties' contentions, and evaluate all of the arguments defendant has advanced as being without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add a few observations, however.

There is adequate, substantial and credible evidence in the record to support the trial court's findings; and we are, therefore, obliged to defer. See State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964).

It is of no consequence that the evidence supporting the finding that defendant had committed a theft was circumstantial. See State v. Dancyger, 29 N.J. 76, 84-85 (1959); see also State v. Sachs, 69 N.J. Super. 566, 573 (App. Div. 1961) (citing State v. Rogers, 19 N.J. 218 (1959); State v. Goodman, 9 N.J. 569 (1952)).

The record discloses no support whatsoever for the notion that defendant was tried for criminal trespass or burglary as well as the theft for which he had been indicted.