STATE OF NEW JERSEY v. MICHAEL LITTLE

 

-NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0575-03T40575-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL LITTLE,

Defendant-Appellant.

_______________________________________

 

Submitted May 16, 2006 - Decided June 9, 2006

Before Judges Skillman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-02-0226.

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

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Little appeals his conviction of third-degree theft under N.J.S.A. 2C:20-3(a) following a thirteen-day jury trial, and his sentence to a nine-year extended prison term. We affirm the conviction but remand for resentencing in accordance with State v. Natale, 184 N.J. 458, 484, 494-95 (2005).

The underlying offense arises out of the removal of merchandise from a jewelry store in Elizabeth, New Jersey at about 5:15 p.m. on Friday, July 24, 1998. Store employees reported that several masked African-American males had forcibly entered the store at that time, at least one of them possessing a semi-automatic "Tech 9" firearm. The intruders shattered several glass display cases, obtaining six Rolex watches and several fourteen-carat gold bracelets worth approximately $27,600. They fled from the store, leaving behind the semi-automatic gun, and police arrived shortly thereafter.

Defendant was apprehended with another African-American male, Joseph Cox, about three hours later in an Oldsmobile bearing a license plate matching the one that a store employee had observed on the robbers' getaway vehicle. Defendant contends that he was not involved in the jewelry store robbery, and that he has been misidentified as a participant.

An Essex County grand jury subsequently indicted defendant, along with Cox (also known as Vincent Brown) and Rahjaha Baxter (also known as Gregory Baxter), for the following crimes: second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count one); third-degree unlawful possession of an assault firearm, contrary to N.J.S.A. 2C:39-5(f) (count two); third-degree possession of a weapon (a firearm) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count three); third-degree possession of a weapon (a hammer) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count four); and first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count five). The grand jury also returned an indictment against defendant charging him with a violation of the "certain persons not to have weapons" statute, contrary to N.J.S.A. 2C:39-7.

Defendant and Cox were tried in April and May 2003, Baxter having reached a plea agreement with the State in exchange for his cooperation. On the second day of deliberations, the jury returned a verdict of not guilty on all counts specifically charged in the indictment, but it did find defendant guilty of third-degree theft of property valued greater than $500 but less than $75,000, a lesser-included offense of the first-degree robbery charged in count five. As a consequence of the verdict, the trial judge granted the State's motion to dismiss the "certain-persons" indictment against defendant, which had been severed before trial.

The State moved for an extended-term sentence based on defendant's prior criminal record. The judge granted that motion, sentencing defendant to a term of nine-years imprisonment, with a fifty-two-month period of parole ineligibility, to run consecutively to sentences that defendant was already serving, plus mandatory fines and penalties.

On appeal, defendant raises the following arguments:

POINT I

THE DEFENDANT'S MOTION FOR A DIRECTED FINDING OF NOT GUILTY AT THE CONCLUSION OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED.

POINT II

THE VERDICT OF GUILTY OF ALL [SIC] COUNTS IN THE INDICTMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW).

POINT III

THE SENTENCE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO HAVE A JURY FIND AGGRAVATING FACTORS OTHER THAN HIS PRIOR RECORD.

POINT IV

THE VERDICTS OF NOT GUILTY OF BURGLARY AND GUILTY OF THEFT WERE INCONSISTENT AND ILLOGICAL, AND WARRANT A NEW TRIAL. (NOT RAISED BELOW)

We shall address Points I, II, and IV first, as they do not concern defendant's sentence.

I.

Defendant makes related contentions that the court should have directed a not guilty verdict at the close of the State proofs, or, alternatively, should have granted a post-verdict judgment of acquittal on the theft offense because of an alleged insufficiency of evidence. To evaluate those claims, we now discuss those proofs in greater detail.

The State's case was largely based upon a combination of eyewitnesses and forensic expert testimony. The eyewitnesses were three employees of the family-owned jewelry store: Vivian Zeik-Leonard, her sister Ivette Zeik-Fernicola, and the store's jeweler, Luis Lopez. As Zeik-Leonard testified, the store was usually open until 6:00 p.m., but earlier that afternoon, Zeik-Leonard received a phone call from someone asking about Rolex watches and the store's closing time. Perceiving the call as a "red flag" of a potential robbery, Zeik-Leonard started the process of closing the store early. The store entrance was locked and customers could only gain entry after ringing a buzzer and being let in by store personnel.

According to Zeik-Leonard's testimony, at about 5:15 p.m., while she was still in the process of closing the store, an African-American male began pounding on the door with a hammer, attempting to get inside. She observed that the man's face was totally masked, and that he was wearing jeans, loose-fitting Timberland boots, and gloves. The intruder succeeded in loosening the rubber around the door and removing a portion of the door glass. He crawled inside.

As the intruder gained entrance to the jewelry shop, Zeik-Leonard ran through an internal door connected to her uncle's adjacent clothing store, and went outside. There she spotted another African-American male standing next to a gold-colored car, dressed in the same fashion as the intruder with the hammer. Zeik-Leonard took note of the car's license plate number. She then saw two men emerge from the jewelry store and get into the car, which drove away.

The testimony of the other two witnesses who had been inside the jewelry store detailed what had occurred after Zeik-Leonard had fled the shop while the robbery was in progress. Her sister, Zeik-Fernicola, testified that after the intruders had entered the store, she hid with a customer in an interior office area. Although Zeik-Fernicola did not see the robbers, she did hear repeated crashing and breaking sounds after they had gained entry. The jeweler, Lopez, testified that he had observed the activity on a surveillance video camera inside the store's workshop. Lopez observed a man breaking the front door down with a hammer, and a second man throw a weapon into a Rolex display case and remove several watches. He described the intruders as either black or Hispanic.

Later that evening, police located a vehicle, an Oldsmobile Cutlass described as having a brown or gold color, with a license plate matching Zeik-Leonard's report. When police approached the car and directed the occupants to get out and raise their hands, defendant and the driver, Cox, refused. Instead, Cox placed the Oldsmobile in reverse and rammed the police car behind it. Despite this evasive maneuver, the police were able to box in the Oldsmobile. They arrested defendant and Cox.

At the time of defendant's arrest, police contend that they discovered him wearing size 10 1/2 Timberland boots. They also found in the Oldsmobile two gloves, straps that held jewelry, and a display case identical to the cases used in the victims' store. The State moved these recovered items into evidence at trial.

Apart from these proofs, the prosecution also presented the expert testimony of two forensic scientists from the State Police. One expert, George Chin, analyzed a glass fragment removed from the Timberland boots worn by defendant. Chin compared that fraqment to glass found on a carpet sample taken from the jewelry shop. He found that the glass samples had matching characteristics. The second forensic expert, Karen Groth-Baggitt, identified a green fiber on the bottom of the defendant's boot that was comparable in properties to carpet fibers taken from the jewelry store. Groth-Baggitt opined that the carpet fibers could have come from the same source.

The State also called Baxter, who admitted that he was present at the robbery. Baxter testified that he and another man had smashed in the front door of the jewelry shop with a hammer, kicked open the bottom, crawled in and had snatched several watches. He acknowledged that he had thrown the semi-automatic gun at the Rolex case and that his companion had shattered smaller jewelry cases and had removed a black showcase of bracelets.

However, Baxter denied at trial that defendant and Cox were the persons involved with him in the robbery, even though he had previously given a voluntary statement to the police asserting, among other things, that defendant and Cox had robbed the jewelry store after Baxter had identified the store as a suitable target.

Defendant did not testify at trial, although he did participate in a brief courtroom demonstration showing that his foot was a size 12. However, in the State's rebuttal case, the prosecution presented a witness with a size 13 foot, who demonstrated that his own foot could fit inside of the size 10 1/2 Timberland boot seized from defendant upon his arrest.

Defendant offered no alibi witnesses, nor did codefendant Cox. The defense put on no competing forensic experts. Defendants did call several police witnesses in an effort to impeach the quality of investigation conducted in the case. Cox also presented the testimony of two female acquaintances, both of whom denied that they had any knowledge of Cox planning to sell stolen watches in Atlantic City in the summer of 1998.

In summation at trial and on this appeal, defendant stresses that there were no fingerprints taken from the jewelry store or from the jewelry cases. Defendant also notes that the glass fragment found on the size 10 1/2 Timberland boot allegedly taken from defendant could have been transferred from other sources, and that the carpet fibers analyzed by the experts were generic in nature. Defendant further notes the lack of a positive identification of him by any of the eyewitnesses in the store. He also emphasizes that Baxter's trial testimony exculpated him, arguing that Baxter had initially lied to the police about defendant's involvement out of fear of retaliation by the supposed perpetrators.

At the close of the State's case in chief, defendant unsuccessfully moved for a directed verdict pursuant to R. 3:18-1. In deciding such a motion for acquittal at the close of the State's evidence, the court must determine whether the State's evidence, viewed in its entirety and giving the State the benefit of all favorable inferences, could permit a jury to find the defendant guilty beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). "In assessing the sufficiency of the evidence, the relevant inquiry is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Martin, 119 N.J. 2, 8 (1990) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). On a motion for a judgment of acquittal, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975); see also State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000).

We apply these same standards to this appeal, see State v. Kittrel, 145 N.J. 112, 130 (1996), and are satisfied that the defendant's motion for judgment of acquittal was properly denied. There is no doubt that the victims' jewelry store was robbed on the afternoon of July 24, 1998. The disputed issues of identification that permeated the case were, in essence, questions of credibility for the jury.

Although the State had no eyewitness who could confirm that defendant was one of the masked thieves, the circumstantial proofs implicating defendant were substantial. These proofs included, among other things, the defendant's presence, a short time after the theft, in an Oldsmobile bearing the same license plate observed on the getaway car; the attempt of the driver, Cox, to evade the police; the display case, gloves and jewelry strap found in the Oldsmobile; Zeik-Leonard's observation that a robber was wearing Timberland boots and the Timberland boots found on defendant upon his arrest; and the matching carpet fibers and glass fragments found underneath those boots. Even if we disregard the vacillating testimony of Baxter, the State's remaining proofs are sufficient to establish defendant's guilt of theft beyond a reasonable doubt. We reach that conclusion fully cognizant that the jury acquitted defendant of the more severe offense of robbery under N.J.S.A. 2C:15-1, as there is a rational basis in the record to sustain the elements of theft under N.J.S.A. 2C:20-3(a) as a lesser-included offense. The jury could have rationally concluded that defendant was one of the masked men who removed jewelry from the store, but that he was not the one who hammered the front door open or who was wielding the semi-automatic firearm.

Likewise, we reject defendant's argument that the verdict was against the weight of the evidence under R. 3:20-1. A jury verdict should only be set aside by the trial judge where it clearly and convincingly appears there was a miscarriage of justice. State v. Labrutto, 114 N.J. 187, 207 (1989). On review, appellate courts apply essentially the same standard. Id.

Preliminarily, we observe that defendant did not move to set aside the verdict at the trial level, and that his application to have us do so on appeal is therefore procedurally defective. See R. 2:10-1; State v. McNair, 60 N.J. 8, 9 (1972). Aside from that problem, we also find the argument substantively unpersuasive, giving due regard to the jurors' assessment of the credibility of the trial witnesses. State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.) ("[a]ppellate review [of jury verdicts] is limited to the correction of injustice resulting from a plain and obvious failure of the jury to perform its function"), certif. denied, 102 N.J. 312 (1985).

We also reject defendant's argument in Point IV that the jury's verdict of not guilty on the burglary count under N.J.S.A. 2C:18-2(a) invalidates the guilty verdict on theft under N.J.S.A. 2C:20-3(a). The two crimes involve different, albeit overlapping, elements. An inconsistency between verdicts does not require the defendant's conviction to be reversed, so long as the conviction is based upon evidence that supports guilt beyond a reasonable doubt. State v. Banko, 182 N.J. 44, 54-55 (2004). For reasons we have already explained above, the State's proofs on the theft charge adequately meet this test. It is of no significance that the jury, faced with those proofs, may have reached a compromise by finding defendant guilty of one crime rather than multiple crimes. State v. Grey, 147 N.J. 4, 10 (1996)(a jury may reach inconsistent verdicts based upon considerations of compromise or lenity, so long as its determinations of guilt are adequately supported).

We thus affirm defendant's conviction.

II.

As to defendant's remaining argument in Point III, the State concedes that his nine-year sentence on a third-degree offense is above the presumptive extended term of seven years formerly applicable to such a crime, see N.J.S.A. 2C:44-1(f)(1), and that defendant is therefore entitled to be resentenced under the principles of State v. Natale, 184 N.J. 458, 484, 494-95 (2005). We therefore remand for that purpose.

 
Conviction affirmed, remanded for resentencing.

(continued)

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A-0575-03T4

June 9, 2006