STATE OF NEW JERSEY v. TRACY GURLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2364-05T42364-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRACY GURLEY,

Defendant-Appellant.

_______________________________________________________

 

Submitted April 18, 2007 - Decided May 17, 2007

Before Judges Stern, Collester and Lyons.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 04-10-1703.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael Confusione, Designated

Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for

respondent (Natalie A. Schmid Drummond, Deputy

Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from a judgment of conviction for shoplifting and simple assault, as lesser included offenses, and of third degree resisting arrest. He received concurrent sentences aggregating ten years with five years to be served before parole eligibility, which was the extended term for the resisting arrest conviction. There is no dispute that a remand under State v. Natale, 184 N.J. 458 (2005), and State v. Pierce, 188 N.J. 155 (2006), is required on this direct appeal if the resisting arrest conviction is upheld.

On this appeal defendant argues:

POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S

MOTIONS FOR ACQUITTAL AND NEW TRIAL

POINT II THE TRIAL COURT'S JURY CHARGES WERE INSUFFICIENT

POINT III THE TRIAL COURT ERRED IN PERMITTING OFFICER

FORD TO TESTIFY

POINT IV THE TRIAL COURT ERRED IN PERMITTING SHERIFF

CASSIDY TO TESTIFY

POINT V THE TRIAL COURT ERRED IN ADMITTING IMPROPER

PHOTOGRAPHS INTO EVIDENCE

POINT VI THE PROSECUTOR'S COMMENTS DURING TRIAL

DENIED DEFENDANT A FAIR TRIAL

POINT VII THE SENTENCE IMPOSED BY THE TRIAL COURT IS

IMPROPER AND SHOULD BE REMANDED TO THE TRIAL

COURT PURSUANT TO STATE V. NATALE

POINT VIII THE SENTENCE IMPOSED BY THE TRIAL COURT IS

EXCESSIVE

Except as noted below, we find that these claims are without merit and warrant only the following discussion. R. 2:11-3(e)(2).

This is a case involving the attempted theft or shoplifting of a television set during which a Hudson County Sheriff's Officer, working as a security officer, intervened, resulting in the exchange of force and assault upon the officer. There was sufficient evidence to sustain the verdict as returned on each count.

The jury was charged with respect to third degree resisting arrest and the lesser included disorderly person's offense, see N.J.S.A. 2C:29-2. However, reference to the disorderly person's offense was not included in the verdict sheet, and the jury was given only one choice of the elements on the verdict sheet with respect to resisting arrest. In other words, the jury was requested to decide only if defendant was guilty or not guilty of third degree resisting arrest.

This is not a case like State v. Reese, 267 N.J. Super. 278, 286-89 (App. Div.), certif. denied, 134 N.J. 563 (1993), in which the jury instructions can be said to explain or control the jury's understanding of the verdict sheet. Here, the verdict sheet included only one question with respect to resisting arrest which embodied only one degree of resisting arrest on which to find defendant guilty. Accordingly, we must vacate the conviction for resisting arrest, and remand for a new trial on that charge.

With respect to the lesser included offense of shoplifting, we agree with defendant that the jury was not properly instructed on the element of "the full retail value" of the television set. The jury was instructed that the State had to prove "beyond a reasonable doubt that defendant's purpose was to deprive the merchant of possession, use or benefit of such merchandise without paying the full retail value," but was not orally instructed that it had to determine the value of the television. However, the verdict sheet required the jury to decide if "the value of the property [was] over $200.00" after finding defendant guilty of "unlawfully tak[ing] possession of; carry[ing] away or, transfer[ring] any merchandise offered for sale by National Wholesalers, without paying for same." And Rodcliff Nathan, the manager of the Electronics Department at National Wholesale Liquidators, testified that the television sold for $269.97. Moreover, reading the charge as a whole, we believe that the jury understood that it had to find the value based on proof beyond a reasonable doubt. Accordingly, we uphold the shoplifting verdict.

As the jury found defendant guilty of shoplifting over $200.00, he was guilty of a fourth degree crime (not a disorderly person's offense as stated in the judgment). The eighteen-month sentence imposed is above the former "presumptive," and within the fourth degree range, and as such, a Natale remand is required on the shoplifting conviction. See also State v. Pierce, supra, 188 N.J. at 171-72 (regarding aggravating factors three, six and nine); N.J.S.A. 2C:44-1f(1).

Accordingly, we remand to the Law Division for resentencing on the shoplifting conviction, to follow a retrial on the resisting arrest charge. The simple assault conviction and sentence thereon are affirmed.

Remanded for further proceedings consistent with this opinion.

 

Defendant's pro se brief does not conform to the Rules and contains no point headings.

In addition to being instructed that the State had to prove the defendant's purpose to deprive the merchant of its "merchandise without paying the full retail value," when speaking of the theft, the judge expressly stated that "[s]ince the value of moveable property determines the degree of the crime, the State must prove its value beyond a reasonable doubt."

Given the issues involved and the fact the State has not asked for entry of judgment on the disorderly person's resisting arrest, we leave that possibility open for development in the Law Division. See State v. Alexander, 215 N.J. Super. 523, 531 (App. Div. 1987). We also leave to the judge whether to charge fourth degree as well as third degree resisting arrest and other forms of theft after hearing the evidence. Theft was charged as a lesser included offense to shoplifting at the first trial, but fourth degree resisting arrest was not charged at defendant's request. See N.J.S.A. 2C:29-2a.

(continued)

(continued)

6

A-2364-05T4

May 17, 2007