STATE OF NEW JERSEY v. HERBERT L. WHITE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-07770-13T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HERBERT L. WHITE, a/k/a CROSS

KENTHEOTI, a/k/a WHITE HERBIE,

Defendant-Appellant.

August 21, 2015

Submitted February 2, 2015 - Decided

Before Judges Lihotz and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 11-08-0976.

Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Herbert L. White appeals from his conviction for third degree theft of movable property, N.J.S.A. 2C:20-3(a). He argues

POINT I: THE TRIAL COURT ERRED IN REFUSING TO ADMIT AS EVIDENCE WHITE'S STATEMENTS TO DETECTIVE COWPERTHWAIT.

A. THE TRIAL COURT'S REFUSAL TO ADMIT WHITE'S STATEMENTS TO DETECTIVE COWPERTHWAIT WAS CONTRARY TO THE MODEL CHARGE ON RECEIVING STOLEN PROPERTY AND IMPROPERLY CREATED THE FALSE IMPRESSION THAT WHITE'S POSSESSION OF THE STOLEN SNOW BLOWER WAS UNEXPLAINED.

B. WHITE WAS CLEARLY PREJUDICED BY THE TRIAL COURT'S FAILURE TO ADMIT HIS STATEMENTS TO COWPERTHWAIT.

The State responds by arguing the court properly exercised its discretion in excluding the statements and in any event, their exclusion was not prejudicial.

We have considered the parties' arguments in light of our review of the record and applicable legal principles. We affirm.

We discern the following procedural history and salient facts from the record. A Burlington County grand jury indicted defendant on charges of third degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one), and third degree theft of movable property, N.J.S.A. 2C:20-3(a) (count two), in connection with an October 22, 2010 theft of snow blowers and a utility vehicle from Wainwright Equipment, LLC (Wainwright) in Columbus. Before trial, the State dismissed count one, and the court denied defendant's motions to suppress physical evidence (a snow blower) seized from his home, and statements he made to the police.

Trial occurred in January 2013, during which the following evidence was adduced. On the morning of October 23, 2010, when Wainwright employees Christopher Lovenduski and Jeffrey Boldizar arrived at work, they observed items missing and out of position. Upon searching the property, they discovered that surveillance cameras had been pushed upward, a gate had been cut open, and six snow blowers and a John Deere "Gator" utility vehicle had been stolen. The ensuing police investigation, revealed defendant's involvement in the theft. The police relied upon truck rental records, defendant's cell phone records, and surveillance video from a self-storage facility.

In January 2011, defendant was observed operating a John Deere snow blower near his home. A search of defendant's home on February 16, 2011, revealed that the serial number on defendant's snow blower matched the serial number of one of the snow blowers stolen from Wainwright.

Defendant was not at his home during the search. He spoke to a police officer by telephone and asked why the police were at his home. The officer explained that they were looking for stolen property to which defendant responded that "the only thing stolen at the residence was a snow blower." Eight days later, defendant was arrested and charged in connection with the theft. After his arrest, defendant told police he purchased the snow blower from an individual identified as "M.C." for $800, that he could not provide any further information about M.C. because he did not want to be seen as a "snitch," and that he believed M.C. had additional snow blowers in his possession, and, given a chance, he could possibly obtain them.

Pretrial, defendant moved to exclude the statements he made to the police when speaking to an officer by telephone during the search of his home and the statements he made to the police after his arrest about "M.C." After considering testimony from defendant, as well as Springfield Township Police Officer Adam Cowperthwait, the court held the State could use both statements. Regarding the post-arrest statements at issue on appeal, the court concluded that they were made spontaneously, without any questioning, after defendant had been advised of his Miranda1 rights.

At trial, the prosecutor used defendant's pre-arrest statement to the police, but did not utilize his post-arrest statements. In cross-examining Cowperthwait, defense counsel attempted to elicit testimony regarding defendant's post-arrest statements. The prosecutor objected on hearsay grounds. Defense counsel argued it was admissible as a statement against defendant's interest in accordance with N.J.R.E. 803(c)(25). The court disagreed and sustained the objection.

The jury found defendant guilty of theft of movable property in an amount greater than $500 but less than $3500. The court later denied defendant's motion for a new trial, entered a judgment of conviction, and sentenced him to four years in prison. This appeal followed.

Defendant's sole argument on appeal is that the court erred in not permitting his trial counsel to question a police officer about statements defendant made after his arrest. Defendant argues the testimony was relevant to his defense against the charge of theft by receiving stolen property, N.J.S.A. 2C:20-7, which was charged to the jury as an alternative to the charge of theft of movable property. We disagree.

We review the evidentiary ruling for an abuse of discretion. State v. Nantambu, 221 N.J. 390, 402 (2015). We find no abuse of discretion in the court's ruling. The post-arrest statements constituted inadmissible hearsay under N.J.R.E. 801(c) and 802, and defendant has not identified any exception to the rule against hearsay that would render the statements admissible. State v. White, 158 N.J. 230, 238 (1999). The trial court correctly rejected defense counsel's argument for application of the statement-against-interest exception under N.J.R.E. 803(c)(25) because the post-arrest statements constituted a self-serving attempt to exculpate defendant and inculpate an unnamed individual. Thus, they were not contrary to defendant's interests. White, supra, 158 N.J. at 239; State v. Nevius, 426 N.J. Super. 379, 394-95 (App. Div. 2012), certif. denied, 213 N.J. 568 (2013); State v. Gomez, 246 N.J. Super. 209, 215-17 (App. Div. 1991). Finally, even if the court did err, reversal is not warranted because defendant was found guilty of theft of movable property, N.J.S.A. 2C:20-3(a), not theft as a result of receiving stolen property, N.J.S.A. 2C:20-7, and his conviction does not constitute a miscarriage of justice. R. 2:10-2.

Affirmed.

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

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