On appeal from Superior Court of New Jersey Law Division, Somerset County, Indictment No. 05-03-0184.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lihotz.
Defendant Richie Burton appeals from his conviction, following a jury trial, for one count of attempted shoplifting, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20:11(b)(4), and two counts of shoplifting, N.J.S.A. 2C:20-11(b)(4). Because the jury found the value of the stolen items exceeded $500, the crimes were of the third-degree. At sentencing, the trial judge declined to impose an extended term and sentenced defendant to three concurrent five-year terms of incarceration. All applicable fines and assessments were imposed and defendant was ordered to pay restitution of $1,215.
On appeal, defendant presents a single argument:
INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
We find no flaw in the trial court's charge to the jury, and affirm.
On February 13, 2005, Raymond Vitellaro, a Watchung Wal-Mart Loss Prevention Associate, found the glass display case containing MP3 players unlocked. Vitellaro determined the lock that secured the case had been popped out. He also noticed empty spaces in the display case.
Vitellaro returned to his office to review the store's security videotape. The Loss Prevention Office monitors and controls the 300 store cameras. While watching the day's surveillance recordings, Vitellaro observed a customer enter the electronics department, approach the glass display case, and remove MP3 players from the case. Vitellaro described the customer as a "[b]lack male, about 6-4, heavy set . . . wearing a black shirt [and] blue jeans."
The store's security camera system had a zoom feature that allowed Vitellaro to look closely and identify the brand of the items taken. He testified the customer took two Zen models each valued at $249, and four other MP3 players valued at $179 per unit.
Each of the MP3 players taken had a security strip, which would sound an alarm upon exiting the store, unless deactivated. Generally, deactivation occurs at purchase when a sales associate passes the secured item over a gray deactivation pad located at each cash register. The surveillance video showed the customer in question pass a lamp box over a deactivation pad at an unattended register in the sporting goods department. The lamp did not have a security strip because it cost only $20. Vitellaro explained that the use of the deactivation pad would deactivate the security strip on any items located inside the lamp box.
On February 19, 2005, Vitellaro was monitoring the store's security cameras when he saw a man matching the description of the customer whom he believed had shoplifted the MP3 players. Controlling the cameras, Vitellaro "followed" the customer as he entered the store, took a shopping cart and proceeded toward the men's department. Vitellaro watched the customer place shirts on the side of his cart then head to the electronics department where he paused at the digital cameras and camcorders. Vitellaro testified the customer next transferred the shirts and his jacket to a shopping cart that contained a boxed computer and walked off with that shopping cart. The customer stopped at the toy department where he picked up an empty box for a toy table and chairs that was on display. The customer placed the toy box in his shopping cart on top of the computer box. He is next seen on the ...