October 2, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JANETTE WARD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. S-2004-001020.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2007
Before Judges Lintner and Parrillo.
Defendant Janette Ward was convicted in the municipal court for shoplifting, N.J.S.A. 2C:20-11(b)(2), and again on appeal in the Law Division, after a trial de novo, where the fine was reduced to $50. Defendant appeals, and we affirm.
According to the State's proofs, on December 5, 2004, defendant went to the Home Depot store in Old Bridge to return a damaged cabinet she bought the previous day and to purchase a new one at the same price of $784.61. At around 2:00 p.m., Darryl Bishop, a loss prevention associate employed by Home Depot, observed defendant in the hardware department take seven marble-handled cabinet knobs, valued at $3.99 a piece, and walk over to her cart containing the vanity cabinet and other merchandise, including a base, counter top and some plumbing items, that she was buying. She pushed the cart to another aisle and, after scanning the area, put three of the knobs inside the cabinet so that the knobs were no longer visible. Defendant then concealed the four other knobs in the same fashion. According to Bishop, defendant's concealment required a concerted effort. Afterwards, defendant stood in line at one of the register locations. Bishop stood about ten feet behind defendant, as if he were another shopper, and watched defendant pay for the other items in the cart which, exclusive of the cabinet, totaled $185.12. Defendant, however, did not pay for the seven knobs, which cost exactly $27.93.
As defendant started to exit the store, an alarm sounded, triggered by an anti-shoplifting sensor inadvertently left inside one of her purchases. When the sales clerk attempted to remove the sensor, he discovered the knobs. The clerk gave defendant a chance to remove the knobs, but Bishop immediately approached, identified himself, and eventually removed the knobs himself from the exact same location that he observed defendant place them originally. Defendant expressed surprise over their presence and disclaimed any knowledge as to "how they got there." Bishop then escorted defendant to his office, where defendant admitted in writing that she stole the knobs. In response to a question by Old Bridge Police Officer Joseph Miller, who arrived on the scene shortly thereafter, defendant also admitted taking the knobs.
At trial, defendant denied stealing the knobs, insisting instead that she simply left the knobs on top of the cabinet she was purchasing and that they must have mistakenly fallen into the cabinet while she was pushing the cart around. Defendant also said the document containing her statement was blank when she signed it and that in responding to Officer Miller's question, she merely meant that she had taken the merchandise "off the shelf."
At the conclusion of the evidence, the municipal court judge found defendant guilty of shoplifting, reasoning:
And the Court is called upon to weigh the evidence and weigh the testimony and try to decide which is a more credible version of the events. . . . .
[Bishop] indicated that Ms. Ward was taken to the back room, [where] she had ampl[e] opportunity to say that she had forgot to pay. At no time did she make any kind of a statement of that nature and basically he took a statement from her and she acknowledged that she took these items from Home Depot without making payment and that would be the 7 knobs.
But [Bishop] was accusing her of stealing and she knew that. She said [she] did not steal, that she was not a [thief] but then she signed a statement that indicated that she in fact took those particular items.
She says that the statement was empty at the time that she signed it. But that [strains] my credibility because I see that both items had the --- crossed out. And I cannot imagine that she would sign a blank statement, especially since she indicates she can read and write the English language.
Okay and when the Officer asked her if she took some things, she said yes she took them, in her mind she was thinking she took them off the shelf. Everyone else interprets that to mean that she took them with the intent to deprive the merchant of the full value. I'm convinced beyond a reasonable doubt that in fact that the State has in fact proved that Ms. Ward did commit an act of shoplifting.
Following her de novo review, the Law Division judge also adjudicated defendant guilty of shoplifting. The judge specifically found:
Because [the municipal court judge] clearly makes a factual finding between the two witnesses finding Bishop to be credible and finding Ms. Ward to be incredible with regard to the testimony. She doesn't accept that there was a blank form that was signed, and she doesn't accept that the knobs inadvertently fell into the counter. I agree.
One, I've got the presumption by statute that if there is a concealed item when someone is leaving the store there is a presumption that it was purposely concealed.
I know it's only twenty-eight dollars worth of merchandise, but I do find Ms. Ward is guilty of shoplifting with regard to these items. I find it based on the testimony below. I find that Mr. Bishop was the more credible of the two witnesses. I'm giving deference to the Court below who also had the opportunity to observe the testimony of these two witnesses . . . .
On appeal, defendant principally argues that her counsel was grossly ineffective at the municipal court level. Such claims, however, dependent as they are on evidence dehors this record, are not resolvable on direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992); see generally State v. Locurto, 157 N.J. 463, 471 (1999). Suffice it to say, the record reflects none of the deficiencies alleged by defendant, much less that any such attorney shortcomings meet either the "performance" or "prejudice" prong of the two-part test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed. 2d 864 (1984). See also State v. Fritz, 105 N.J. 42, 52 (1987). We reject defendant's remaining contentions as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
The function of the Law Division on an appeal from municipal court is not to search the record for error by the municipal court, not to decide if there was sufficient credible evidence to support the municipal court conviction, but "to determine the case completely anew on the record made [before the trial judge], giving due, although not necessarily controlling, regard to the opportunity of the . . . judge" to evaluate witness credibility. State v. Johnson, 42 N.J. 146, 157 (1964) (citations omitted); see State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000); see also R. 3:23-8(a). In other words, "[t]he judge in a trial de novo must 'make his [or her] own [independent] findings of fact.'" State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (quoting State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).
In contrast, our function as a reviewing court is governed by the "substantial evidence" rule, namely to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. When we are satisfied that the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we might have reached a different conclusion or if the result was a close one. Ibid.; see also Avena, supra, 281 N.J. Super. at 333. Indeed, we ordinarily do not "undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). Measured by this standard, we are satisfied that the finding of the Law Division judge on this record, that defendant was guilty of shoplifting beyond a reasonable doubt, is unassailable. Johnson, supra, 42 N.J. at 166.
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