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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-6333-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTONIO ORTIZ,

Defendant-Appellant. ______________________________ November 8, 2010 Argued: October 14, 2010 - Decided:

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-01-00010.

Kimmo Z. H. Abbasi, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Abbasi, on the brief).
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Ian Brater, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Mary R. Juliano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Antonio Ortiz, appeals from a May 29, 2009 judgment of conviction of fourth-degree credit card theft, N.J.S.A. 2C:21-6c(2)(Count One). Defendant contends that the trial judge erred by denying his motion for acquittal, and that his sentence was excessive. We disagree and affirm. On July 11, 2008, defendant was in police headquarters for reasons unrelated to this case. While Officer Brian Foy walked him to an identification bureau room, he observed defendant stop for a few moments, adjust his clothing, fall against a wall, and throw some items toward a garbage can. Officer Foy testified that it looked like defendant "orchestrated a fall." The items landed in the garbage can and on the floor. Officer Foy directed defendant to stand near another officer, and he retrieved several credit cards, a New Jersey driver's license, and various other cards. Jeanne Cimino's name appeared on all of these items. The day before this incident Cimino reported to the police that her wallet and credit cards had been stolen. Cimino testified at trial that she did not know defendant and never lent him the credit cards. After conclusion of the State's case, defendant moved for a judgment of acquittal, arguing that the State failed to demonstrate that he intended to use, sell, or to transfer the credit cards to another person. The State countered that the jury could infer the requisite intent from defendant's conduct. The judge agreed with the State and denied the motion. Defendant then testified that he found the credit cards on the side of a curb, picked them up, and planned "to do the right thing and turn them in." Defendant admitted that, while he was at police headquarters on the unrelated matter, he failed to tell the police that he had the credit cards in his possession. Defendant explained that he did not give the credit cards to the police because he forgot to do so. Defendant acknowledged that instead he attempted to throw the credit cards into a garbage can.

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The judge sentenced defendant to two years of probation with 364 days in the county jail and imposed the appropriate fines and penalties. On appeal, defendant raises the following points: POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL AT THE CLOSE OF THE STATE'S CASE BECAUSE THE STATE FAILED TO PROVE ALL ELEMENTS OF THE CRIME OF CREDIT CARD THEFT, PURSUANT TO N.J.S.A. 2C:21-6 (c)(2).

POINT II

THE SENTENCE IMPOSED ON DEFENDANT'S CONVICTION OF CREDIT CARD THEFT WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

At the close of the State's case or after the presentation of all evidence, the court must, on motion by defendant or on its own initiative, grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1. The trial judge must deny the motion if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its . . . favorable inferences . . . a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed.2d 396 (1962)). We use the same standard as the trial court in reviewing a motion for judgment of acquittal. State v. Moffa, 42 N.J. 258, 263 (1964). If insufficient evidence is found, then an acquittal is required. Applying that standard, we conclude that the trial judge properly denied the motion. Defendant contends that the judge erred by not granting his motion for acquittal because the State failed to prove the required mental state. We disagree. To convict defendant of fourth-degree credit card theft, the State must prove beyond a reasonable doubt that defendant (1) received a credit card that he knew was lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder; (2) retained possession of the credit card; and (3) retained

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possession with the intent to use, sell or transfer the credit card to a person other than the issuer or the cardholder. N.J.S.A. 2C:21-6c(2). Defendant does not challenge the sufficiency of the proofs underlying the first two elements. Rather, he challenges the third element. Viewing the State's evidence, and giving the State the benefit of all favorable inferences therefrom, we conclude that defendant's challenge lacks merit; a reasonable jury could find defendant guilty of the charge beyond a reasonable doubt. Defendant had an opportunity to surrender the cards but decided instead to stage a fall and attempt to discard them. Through defendant's conduct, the State demonstrated circumstantially that he intended to use, sell or transfer the cards. "Circumstantial evidence can support a verdict against a defendant if it is sufficient to generate a belief of guilt beyond a reasonable doubt." State v. Papistas, 80 N.J. Super. 420, 424 (App. Div. 1963); see State v. Jenewicz, 193 N.J. 440, 451 (2008) ("A defendant's state of mind at the time of an alleged crime is inherently intangible and, therefore, is proven predominantly through witness testimony and circumstantial evidence."). We also disagree with defendant's contention that his sentence is excessive. Defendant does not challenge the trial judge's finding of aggravating factors N.J.S.A. 2C:44-1a(3), (6) and (9), nor does he suggest what, if any, mitigating factors existed. Rather, he contends that the trial judge abused his discretion in imposing two years of probation, with 364 days in the county jail as a special provision. Our review of a sentence is limited. State v. Roth, 95 N.J. 334, 364 (1984). We must first determine whether the correct sentencing guidelines have been followed. Id. at 365. When a trial court follows the sentencing guidelines, we should not second-guess the sentencing court's decision. State v. Jabbour, 118 N.J. 1, 5 (1990). Indeed, an appellate court "'does not sit to substitute its judgment for that of the trial court.'" Id. at 6 (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, we must affirm defendant's sentence. Jabbour, supra, 118 N.J. at 6; O'Donnell, supra, 117 N.J. at 215. Applying these standards, we discern no reason to disturb the sentence. The trial judge followed the sentencing guidelines and the record supports the judge's findings of aggravating and mitigating factors. Defendant faced up to eighteen months in state prison for conviction of a fourth-degree crime. N.J.S.A. 2C:43-6a(4). The judge sentenced him to a two-years probationary term. N.J.S.A. 2C:45-2a. The sentence

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is not "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), and does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365. A

ffirmed.

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