On appeal from Superior Court of New Jersey, Law Division, Bergen County, S-1999-001131- 0246.
Before Judges Petrella, Newman and Wells.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The Bergen County Prosecutor's Office appeals the dismissal by the Law Division, on defendant Barbara Evans' motion, of a shoplifting summons as de minimis pursuant to N.J.S.A. 2C:2-11b.
On appeal, the State contends that the judge erred in considering certain of defendant's statements for their truth and as evidence of innocence, and by deeming certain facts relevant and others irrelevant to the consideration of the triviality aspect of the matter under N.J.S.A. 2C:2-11b. The State argues that, considering the facts in a light most favorable to the State, and assuming, for purposes of the motion to dismiss on de minimis grounds, that the conduct alleged actually occurred, the judge abused her discretion in granting the motion.
On July 27, 1999, defendant Barbara Evans was arrested and issued a complaint-summons in the Borough of Paramus for shoplifting at a Saks store in violation of N.J.S.A. 2C:20- 11b(2). On November 15, 1999, Evans filed a motion to dismiss the summons as a de minimis infraction pursuant to N.J.S.A. 2C:2- 11b.
After the submission of documents, both parties relied on their papers at argument. The judge held that, considering all the circumstances surrounding the offense and Evans' lack of a criminal history, the infraction was de minimis and granted Evans' motion to dismiss.
The facts are gleaned in large part from the incident report submitted by a store detective which was relied upon by the State and defendant. In addition, the judge considered a certification by Evans' attorney and a surveillance tape.*fn1
On July 27, 1999, at approximately 7:09 p.m., Evans entered the Saks Off Fifth Avenue Outlet Store in Paramus and headed towards the accessories department. She picked up a bow hair accessory with a retail value of $12.90 from a display with a sign stating "please do not try on hair accessories." Evans then went to the customer service desk on the lower level of the store pulling her cart, which contained some packages, and holding the item in her hand. While waiting at the customer service desk (apparently to return items) she removed the backing from the bow, which contained the item's SKU number and price, and placed the bow and the backing into her shirt pocket. Shortly thereafter, she took the bow out of her pocket and put it into her hair. She proceeded to return certain items at the customer service desk, but did not purchase the hair bow.
Evans then went to the women's department, where she spent about one hour and fifteen minutes trying on clothing. At approximately 9:00 p.m., Evans went to the checkout and purchased various items, but did not pay for the hair bow. Receipts provided to the motion judge by Evans indicated that she purchased $592.30 in merchandise, but not the hair bow. In a subsequent search of the dressing room, the store detective found the backing to the hair bow underneath a pile of clothes Evans had tried on.
After purchasing the items, Evans went up the stairs and exited the store without having paid for the hair bow, which was still in her hair. As she left through the store doors, Evans was apprehended outside by the store detective and two door guards. She initially refused to re-enter the store and told the store detective that she must have forgotten to pay for the bow and offered to pay for it. Once she was brought into the security office she became verbally abusive, refused to provide any personal information, and refused to sign any paperwork. The Paramus police were called and when they arrived Evans was abusive to the officers and eventually was placed under arrest.
N.J.S.A. 2C:2-11 provides:
The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant ...