July 18, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V MICHAEL J. RZUCZEK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Ind. No. 03-12-1623.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: July 5, 2007
Before Judges Skillman and King.
This is an appeal from a judgment of conviction and sentence for violation of the shoplifting statute, N.J.S.A. 2C:20-11b(4),*fn1 for the theft of sixteen cordless phones from Wal- Mart. Defendant was found guilty by a jury and sentenced to five years with a two-and-one-half year parole ineligibility term and various financial penalties.
The State's sole witness was Coleen Marie Battista, a Wal- Mart security employee, in Evesham Township, Burlington County. The State's evidence disclosed that defendant went into the Wal- Mart store and removed about sixteen cordless phones from the electronics department. He put them in a container called a tote, which he had obtained in the housewares department. He placed the tote in a shopping cart and went to another department. There he removed a filing cabinet from a display box and filled it with the phones. He then put the filing cabinet back in the box and returned the box to the shelf. He left some phones in the tote and headed to the front of the store where he was intercepted by store security personnel.
In his first point defendant contends that the verdict must be reversed "because [the] State failed to prove that defendant's intent was to deprive Wal-Mart of the telephones within the meaning of N.J.S.A. 2C:20-11b(4)." We find this argument unworthy of serious consideration. While defendant was transporting and hiding the telephones he was secretive about his actions. By the time Battista had detained defendant he had completely filled the filing cabinet and the tote with telephones. Under the appropriate tests in State v. Reyes, 50 N.J. 454, 458-59 (1967), the jury could properly infer that defendant had the requisite intent to steal the telephones from Wal-Mart.
Finally, defendant argues that the charge against him should have been dismissed as de minimis under N.J.S.A. 2C:20- 11b. Defendant never moved for dismissal at trial on this basis. Such a motion clearly would have been frivolous. The shoplifting of sixteen telephones with a retail value of more than $2500 is not in any sense a de minimus criminal violation. Defendant's Point II is clearly without merit because it is mooted by the affirmance of this appeal. R. 2:11-3(e)(2).