October 18, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE MOYA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-06-1212.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 3, 2007
Before Judges Axelrad and Messano.
Following denial of defendant Jose Moya's motion to suppress his confession after a Miranda*fn1 hearing, the jury convicted him of third-degree shoplifting, N.J.S.A. 2C:20-11b(1). He was acquitted of hindering apprehension, N.J.S.A. 2C:29-3b(4), for providing a false name to the officer. The court sentenced defendant to a five-year custodial term with a two and one-half year period of parole ineligibility. The appropriate mandatory applicable fines and assessments were also imposed.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT VOLUNTARILY WAIVED HIS MIRANDA RIGHTS.
THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A JUDGMENT OF ACQUITTAL.
THE CONDUCT OF THE PROSECUTOR, WHICH EXCEEDED THE BOUNDS OF PROPER ADVOCACY, DENIED THE DEFENDANT A FAIR TRIAL.
THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTLY EXCESSIVE.
We are not persuaded by any of defendant's arguments and affirm.
The following testimony was presented by the State at the Miranda hearing and trial. Defendant presented no witnesses at either proceeding. On April 4, 2005, Detective Glen Pagano was on undercover patrol at the Garden State Plaza Mall in Paramus. The officer received a radio transmission regarding suspicious activity by a Hispanic male in the J.C. Penney's children's department. He immediately responded and observed a male matching the description, later identified as defendant, removing children's clothing from a rack and placing the items in a large black garbage bag between his legs. While doing so, defendant continued to shift his eyes in all directions to see if anyone was watching. Defendant then took the bag, walked past several cashiers, and exited the store without paying for the merchandise. Defendant was apprehended with the bag containing children's clothing in the common mall area and arrested for possession of stolen property. During a post-arrest search of defendant, Detective Pagano found a used syringe on defendant.
Defendant was transported to headquarters and processed, during which he told the officer that his name was "Joseph Perez." Detective Pagano then provided defendant with his Miranda rights verbally and with a standard police form, which defendant waived in the presence of Detective Pagano and Detective Robert Guidetti. Approximately five to ten minutes later, Detective Pagano questioned defendant, who stated that he had stolen the clothes from J.C. Penney's to support his heroin addiction. The police ascertained that the value of the clothing in the bag was $988 and discovered defendant's true identity and prior arrest and conviction history.
Detective Pagano testified that defendant never indicated at any point that he wanted an attorney. Furthermore, the detective described defendant's demeanor during the approximately forty-five minute period from the initial encounter in the shopping mall to the taking of his statement as being quite calm, coherent, not shaking, and giving no indication that he was going through any heroin withdrawal or that he was under the influence of drugs.
Defendant primarily contends his confession was not voluntary because of his drug addiction, as his use of heroin shortly before his arrest rendered him "under the influence . . . or still groggy and confused from its lingering affects." The facts developed at the Miranda hearing clearly belie this claim. On the contrary, they support Judge Sebastian Gaeta's finding that, beyond a reasonable doubt, the Miranda procedures were complied with and defendant's confession was knowingly and voluntarily made to Detective Pagano. Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed. 2d at 724; State v. Cook, 179 N.J. 533, 548-49, 562-63 (2004). There is no dispute that Detective Pagano provided oral and written Miranda warnings to defendant and that defendant said he understood his rights and indicated in writing he waived them.
Merely because defendant may have been a heroin addict does not negate the fact that he made a knowing and voluntary confession at headquarters. There is absolutely no evidence in the record to demonstrate that defendant was under the influence of drugs or suffering from heroin withdrawal when he gave the inculpatory statement. To the contrary, as found by Judge Gaeta, defendant's actions and the detective's observations of his demeanor demonstrated that defendant was in possession of his mental faculties from the initial encounter in the mall through the taking of his statement. In response to the detective's routine questioning prior to the pat-down of whether he possessed anything that could hurt the detective, defendant admitted he had a syringe, indicating to the trial judge that defendant's "mind was working logically and knowingly." Defendant was even sufficiently possessed of his faculties to attempt to hide his identity from the officer by representing himself as "Joseph Perez." Moreover, defendant was calm, coherent, provided responsive answers to questions, and presented no indicia that he was under any influence of narcotics.
Defendant next argues the trial judge erred in denying his motion for a judgment of acquittal because: (1) Detective Pagano's testimony lacked credibility; (2) the State submitted no documentation of defendant's suspicious acts by visual broadcast; (3) Detective Pagano lacked pre-existing knowledge of defendant's appearance; (4) the State submitted no photographs of the stolen merchandise; and (5) the State offered no evidence corroborating Detective Pagano's testimony. In deciding a motion for a judgment of acquittal, the trial judge must determine whether the State has presented sufficient evidence, viewed in its entirety, and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, to enable a jury to find the essential elements of the offense beyond a reasonable doubt. R. 3:18-1; State v. Martin, 119 N.J. 2, 8-9 (1990); State v. Reyes, 50 N.J. 454, 458-59 (1967).
Detective Pagano testified that he witnessed defendant put a variety of items of children's clothing into a garbage bag that he was hiding under the rack and walk out of J.C. Penney's without paying for them. He further testified, without objection, to the value of the merchandise. Defendant's confession was ruled admissible. Based on the State's evidence, with all favorable inferences, a rational jury could find defendant guilty of shoplifting. Defendant's aforementioned challenges address credibility issues that are irrelevant to a trial court's ruling on a motion for a judgment of acquittal.
Next, defendant argues the prosecutor's comments in summation, which posed a hypothetical fact analogy, exceeded the bounds of proper and aggressive advocacy and denied him a fair trial. In trying to make the point that Detective Pagano was still credible about what he observed at J.C. Penney's regardless of the description he obtained prior to entering the store, the prosecutor commented that the testimony of an officer dispatched to a car accident and who observed an armed robbery would not be less credible because he was sent there for another purpose or given a different description. The prosecutor urged, "I ask you to analogize to what we have here and what the defense is asking you to believe what occurred here." At the conclusion of the prosecutor's summation, defense counsel placed on the record her objection to his reference to "another type of crime," particularly asserting as prejudicial his comment regarding the use of a gun. Judge Gaeta overruled the objection, satisfied the jurors would understand the analogy and realize it had nothing to do with the facts of the case and would not infer that defendant was involved in an armed robbery. In his instruction, the judge gave the standard charge that summations of counsel are not evidence.
On appeal, defendant argues the "needless" analogy "could only have been intended to sway the jury to considering the officer's testimony [a critical State witness] as credible and was an attempt to 'hoodwink' the jury," which distracted it from a dispassionate consideration of the relevant evidence. According to defendant, the prosecutor's misconduct was sufficiently egregious to warrant a reversal of his conviction or a new trial. We disagree.
Although the prosecutor perhaps made a poor choice of words in the analogy, we cannot imagine that any reference to an armed robbery, which defendant acknowledges was undeniably not what the case was about, involved here, had any capacity to mislead the jury. See State v. Mahoney, 188 N.J. 359, 374 (2006) (holding that analogies in summation are permitted provided they do not mislead the jury); State v. Roman, 382 N.J. Super. 44, 60-61 (App. Div.) (holding that even potentially misleading analogies are not necessarily egregious conduct warranting reversal), certif. granted, 188 N.J. 219 (2006), certif. dismissed, 189 N.J. 420-21 (2007). Nor did the comment vouch for or improperly bolster the credibility of the State's witness because he was a police officer. See State v. Staples, 263 N.J. Super. 602, 606-07 (App. Div. l993). This was an uncomplicated shoplifting case where an officer observed defendant place the merchandise in a bag and leave the store without paying, a crime to which defendant confessed. There was overwhelming evidence tying defendant to the crime. There is no indication in the record the challenged statement diverted the jurors' attention from the facts of the case before them, State v. Ramseur, 106 N.J. 123, 322 (1987), or substantially prejudiced defendant's fundamental right to have a jury evaluate the merits of his defense, State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001).
Lastly, defendant contends the trial judge made two errors in imposing a custodial term of five years with a two and one-half-year parole disqualifier on his third-degree shoplifting conviction. First, he argues the trial judge imposed a sentence that violated State v. Natale, 184 N.J. 458 (2005), because it was in excess of the presumptive term. N.J.S.A. 2C:44-1f. Second, he argues the trial judge erred in assessing the aggravating and mitigating factors and imposed an excessive sentence. Neither argument has merit.
Defendant was sentenced on May l9, 2006. The judge found aggravating factors three, six and nine, N.J.S.A. 2C:44-1a(3), (6), (9), and no mitigating factors, N.J.S.A. 2C:44-1b. As defendant was sentenced more than nine months after Natale was decided, Judge Gaeta made no reference to the former presumptive term in his sentencing analysis. Noting this was defendant's sixth conviction and he was extended-term eligible, which the State did not request, and reciting defendant's extensive record of serious offenses over the past ten years, the court sentenced defendant to the statutory maximum term for a third-degree offender. N.J.S.A. 2C:43-6a(3).
We find no error in the sentence imposed. This case does not fall within the "pipeline retroactivity" of Natale as defendant was sentenced after that case was decided and without reference to the former presumptive four-year term. Natale, supra, 184 N.J. at 494. The court did not abuse its discretion in finding aggravating factor nine and not considering defendant's drug addiction as a mitigating factor, or in rejecting defendant's argument that the five-year sentence would impose excessive hardship on himself and his family. We are satisfied Judge Gaeta properly followed and applied the sentencing guidelines and criteria; the sentence imposed was not manifestly excessive; nor does it shock our judicial conscience. State v. Ghertler, 114 N.J. 383, 387-89 (1989); State v. Roth, 95 N.J. 334, 362-64 (1984).