Theft Conviction Appeal Fails

TRENTON – Phillip C. Atkinson was convicted in a Cape May County jury trial of theft by unlawful taking in the third degree. In his adult history, this was Atkinson’s fifth conviction for a third-degree or greater crime.
Atkinson, then a 38-year-old Wildwood resident, Jan. 18, 2018, ripped a wristlet wallet from the arm of a woman who was descending stairs in an apartment complex. The victim saw Atkinson clearly and had “seen him a lot,” making it easy for her to identify her attacker. She identified the vehicle in which Atkinson fled and later that day did a “show-up identification” of a vehicle stopped by police. The wristlet was on the floor of the seat where the defendant sat.
Given the short amount of time between the incident and the traffic stop, the court judge, with agreement from counsels for both sides, modified the charges and added a supplemental theft charge to the robbery count on Atkinson’s indictment. The jury acquitted Atkinson of robbery, but found him guilty of third-degree theft.
Even though most third-degree crimes involving incarceration carry a three-to five-year sentence, the court saw Atkinson as a persistent offender and sentenced him to seven years. The ruling notes that in cases where there is a substantial criminal history, extended terms can be up to 10 years.
The court ruling states Atkinson, born in May 1979, pleaded guilty to first-degree robbery in 1998. He followed that with a conviction for third-degree possession of a controlled dangerous substance in 2006. Three years later, Atkinson was convicted of possession with intent to distribute, another third-degree offense. More recently, he was convicted of third-degree possession of drugs in 2014.
Atkinson appealed his conviction, arguing that the supplemental charge of theft at his trial was “contrary to the presumption of innocence.” He asked for reversal and remand for a new trial.  
Atkinson’s second point on appeal was that his sentence was “excessive, unduly, punitive” and needed to be reduced.
The court found that the charge given to the jury at Atkinson’s trial contained “numerous references to the defendant’s presumption of innocence.” The court noted the strength of the state’s case. The victim in the incident saw the defendant’s face, knew his name, and identified the defendant in a show-up identification shortly after the crime. The court found “no error clearly capable of producing an unjust result.”
Turning its attention to what Atkinson claims is an excessive sentence, the court noted that New Jersey law allows the sentencing court to impose an extended sentence when the requirements are met that define a persistent offender. The court agreed with the sentencing court that in Atkinson’s case, he met that definition.
Atkinson’s appeal failed to get him a new trial or a reduced sentence. The appeal was decided June 11. 
Although Atkinson lost his appeal, a check of the state Department of Corrections website shows he is no longer incarcerated, but rather on parole.
To contact Vince Conti, email vconti@cmcherald.com.