STATE OF NEW JERSEY v. ERVIN WYMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0454-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERVIN WYMAN, a/k/a ERVING WYMAN, ERVIN WYMAN, JR., IRVIN WYMAN, IRVIN J. WYMAN,

Defendant-Appellant.

________________________________

September 16, 2011

 

Submitted September 12, 2011 - Decided

 

Before Judges C.L. Miniman and LeWinn.

 

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-04-01113.

 

Joseph E. Krakora, Public Defender, attorney forappellant (WilliamJ. Sweeney, Designated Counsel, on the briefs).

 

Paula T. Dow, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, on the brief).

 

PER CURIAM

Defendant Ervin Wyman appeals from a judgment of convic tion, following a jury trial, for theft by unlawful taking, con trary to N.J.S.A. 2C:20-3, and from the eighteen-month sentence imposed for this offense. We affirm.

On December 7, 2008, the victim, who was seventy-nine years old, was playing a slot machine at the Trump Taj Mahal Casino in Atlantic City. She had earlier won $500 playing the slot machines. Just prior to the crime, she put her purse in front of her between the slot machine she was playing and one next to it. At that time, she had somewhere between $300 and $400 in her purse. Although the rest of the machines in the row were empty, a man sat in the seat immediately next to her and began asking her questions about how to play. She thought the ques tions were trivial and silly. Just as she turned around to talk to him, another person's arm reached over the barrier and grabbed her purse.

After her purse was snatched, the victim ran around the slot machine and caught the jacket coattail of a tall man, later identified as defendant, who was holding her purse. As she held onto defendant while trying to reach her purse, he threw it onto the floor. The victim released him to pick it up, only to dis cover that her wallet was missing. She then ran back to defen dant, grabbed him again, and began yelling at him to give her back her wallet.

Alerted by the commotion, Casino Security Officer Kenneth Kollmar approached the area in question. As he did so, he reported a possible physical altercation over his radio and observed defendant throw an object over the slot machines and quickly walk away. Before defendant could reach the exit, Koll mar and other security officers detained him. Kollmar later picked up the object, which was the victim's wallet. Adam Faris, a casino security investigator, responded to Kollmar's radio report. He took custody of the wallet from Kollmar.

Detective Robert Thomas of the New Jersey State Police Casino Investigations Unit met with Faris and obtained his statement. He also interviewed the victim. Thomas then met with defendant in the State Police office located in the casino. He prepared a State Police Miranda1 warning form and advised defen dant of his rights. Defendant signed the form after indi cating that he understood his rights and had agreed to waive them.2 Defendant provided a statement to Thomas admitting that, when he saw the purse on the casino floor, he grabbed it. He further admitted that, when a woman came over and began grabbing at him, he pushed her away. The victim testified that, when her wallet was returned to her, she counted the money and found that she had about $350 in it. Based on this evidence, the jury convicted defendant of theft by unlawful taking.

In sentencing defendant, the judge found aggravating fac tors three, six, and nine.3 Defendant raises the following issues for our consideration:

POINT I - IT WAS ERROR TO DENY DEFENDANT'S MOTION TO DISMISS.

 

The Standard for the Motion.

 

The Evidence at Trial.

 

Could a Reasonable Jury Return Verdicts Based upon the State's Evidence?

 

POINT II - IT WAS ERROR TO DENY DEFENDANT'S MOTION FOR A NEW TRIAL.

 

The Evidence at Trial.

 

Conclusion.

 

POINT III - THERE WERE FATAL ERRORS IN THE ADMINISTRATION OF A MIRANDA WARNING TO DEFENDANT, WHICH TOGETHER WITH THE INVOLUN TARY NATURE OF THE OFFHAND REMARKS, SHOULD HAVE REQUIRED SUPPRESSION OF DEFENDANT'S OFFHAND ORAL REMARKS TO DET. THOMAS.

 

POINT IV - DEFENDANT'S SENTENCE WAS EXCESSIVE.

 

Defendant argues in his first point that the evi dence was insufficient to convict him of taking property valued between $200 and $500 because the victim did not know exactly how much money she had in her purse. As such, a reasonable jury could not convict him of the crime. We disagree.

The victim testified that she had between $300 and $400 in her purse at the time it was stolen. The victim knew she had that amount because she had won a total of $500 earlier, but had played with some of it thereafter. She further testified that, when her wallet was returned to her by Thomas, she counted the money and found there was about $350 remaining in the wallet. That evidence was more than sufficient to sustain defendant's conviction, and the judge did not err in denying his motion for acquittal at the end of the State's case.

We similarly find no merit to defendant's contention in his second point that the judge erred in denying his motion for a new trial. Under Rule 3:20-1, "[t]he trial judge shall not. .. set aside the verdict of the jury 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 urges that the ver dict was against the weight of the evidence because the identi fications by the witnesses at trial were unreliable. He con tends that the victim could only say that defendant looked like the perpetrator when identifying him at trial and that all the witnesses who agreed that he ran or fled the scene were not credible, as the videotape clearly demonstrated that he was not running or even walking fast and that he was cooperative when detained by the security guards. He also relies on his contention that the exact amount of money was not proven.

These arguments ignore the evidence that the victim appre hended defendant while he was in possession of the purse and that Kollmar observed defendant tossing the victim's wallet over the slot machines. The verdict was clearly not against the weight of the evidence, which was more than sufficient to jus tify defendant's conviction. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). The victim's testimony as to the amount of money stolen was credible, and the jury was entitled to determine as such. The judge did not err in denying defendant's motion for a new trial.

We likewise find no merit to defendant's contention that there were fatal errors in the administration of the Miranda warning and that his statement was involuntary as a result of intoxication. He urges that Thomas's failure to have someone witness defendant's signing of the Miranda form was fatal to the admissibility of his statement. However, Miranda does not even require a written waiver. See State v. Warmbrun, 277 N.J. Super. 51, 62 (App. Div. 1994) ("Miranda does not require a written waiver."), certif. denied, 140 N.J. 277 (1995). "Any clear manifestation of a desire to waive is sufficient." State v. Graham, 59 N.J. 366, 376 (1971) (internal quotation marks omitted). Defendant executed a written waiver in the presence of Thomas, signed a statement that indicated he had been advised of his constitutional rights, and then made an inculpatory statement. We find no error in the admission of that statement.

We also are not persuaded that the passing references to defendant appearing to be intoxicated were sufficient to demon strate that he was incapable of knowingly and voluntarily waiv ing his rights. There was no evidence that he was so inebriated that he could not physically or mentally function normally. He answered questions appropriately. The mere fact that a confes sion was made while under the influence of alcohol does not ren der the confession automatically inadmissible. See State v. Wade, 40 N.J. 27, 35 ("A confession made by a person while under the influence of drugs is not per se involuntary."), cert. denied, 375 U.S. 846, 84 S. Ct. 100, 11 L. Ed. 2d 73 (1963). Defendant has failed to demonstrate that he was stripped of his "rational intellect" and "free will." State v. Burris, 145 N.J. 509, 526 (1996) (internal quotation marks omitted). The evi dence established that defendant was able to walk into the interview room under his own power, was oriented to time and place, and had no apparent difficultly understanding or responding to the detective's questions. Defendant's statement to the police was properly admitted.

With respect to his sentence, we recognize that defendant was sentenced at the top of the range for a fourth-degree crime. However, his criminal history is very significant. Defendant had nineteen prior convictions for crimes such as aggravated assault, theft by unlawful taking, false public alarm, unlawful possession of a weapon, possession of cocaine, possession of marijuana with intent to distribute, possession of marijuana, obstruction of the administration of law, harassment, criminal sexual contact, endangering the welfare of a child, prohibited acts, violation of community supervision for life, eluding failure to stop, and false report to law enforcement. Factors 3, 6, and 9 were strong and justified the sentence at the top of the range. There were no mitigating factors. The sentence was within the statutory framework, and the judge considered all of the appropriate factors. State v. Roth, 95 N.J. 334, 364 (1984). We may not substitute our judgment for that of the sen tencing judge unless the sentence is "clearly unreasonable so as to shock the judicial conscience." State v. Dalziel, 182 N.J. 494, 501 (2005) (internal quotation marks omitted). We do not find it to be so.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 This was the thirty-seventh time that defendant had been arrested.

3 N.J.S.A. 2C:44-1a(3), (6), and (9).