June 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HENRY J. RODRIGUEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-01-0035.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2008
Before Judges Stern, Sapp-Peterson and Messano.
Defendant was convicted at a bench trial of three counts of fraudulent use of a credit card in violation of N.J.S.A. 2C:21- 6h (counts two-four), two counts of theft by receipt of a credit card, N.J.S.A. 2C:21-6c (counts five-six), and three counts of forgery, N.J.S.A. 2C:21-1a(2) (counts seven, nine and eleven).*fn1
He was sentenced to probation for three years with conditions including service of 364 days in the County Jail and payment of restitution.
On this appeal, defendant argues:
THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS DEFENDANT'S STATEMENTS TO THE POLICE.
THE TRIAL JUDGE SHOULD HAVE RECUSED HIMSELF BECAUSE THE VICTIM WAS HIS NEIGHBOR.
PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.
THE COURT ERRED IN REFUSING TO GRANT DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL PRIOR TO RENDERING HIS DECISION.
We affirm the conviction.
The offenses dealt with theft and use of credit cards taken from the home of Jonnie Meehan. Defendant had been doing construction work at her house before the thefts.
At a "Jackson-Denno Hearing,"*fn2 see N.J.R.E. 104, Detective Michael Patricia of the Lopatcong Township Police Department testified that he telephoned defendant on October 9, 2005, to arrange an interview with him. When defendant arrived at headquarters for the interview on October 12, Patricia "read him his Miranda rights." Defendant stated that he understood his rights and he signed the Miranda card to that effect. Patricia asked defendant about the credit card purchase of "a watch from Sears and a Paslode nail gun from Lowe's department store." Defendant denied making those charges, but he had been observed by a store video surveillance camera when purchasing the nail gun. The hair color of the person in the video was much lighter than defendant's at the time of the interview, but he admitted to having "colored" his hair and "it was blonde before for a few weeks prior." Patricia then placed defendant under arrest after which defendant volunteered that he "knew this was coming" and wished he had more time "to prepare."
Following the "Jackson-Denno Hearing" a bench trial was conducted. At the trial, Edward Weismantel, Loss Prevention Manager for Lowe's, testified about Lowe's policies and systems to protect against theft. Weismantel testified that Lowe's has a computer system called "Genesis" that retains information records of purchases, and a system called "Intellex" which is a video system that retains recordings from the cameras throughout the store. Weismantel testified that he used the information from these two systems to create a video of the person who used the credit cards in question. He located images of a person at the register using the credit cards and subsequently located images of that person at "the front-door entrance coming into the store and over in the tool area where the Paslode nailers" were located. Defendant was observed purchasing items on September 13, 2005, and on October 1, 2005. On the first occasion defendant used Ms. Meehan's Lowe's Visa credit card, and on the second, he used her Capital One Visa card. The video tapes were entered into evidence.
Howard Weisel, Loss Prevention Manager at a Sears store in Phillipsburg, testified that Sears keeps track of purchases made. Sears did not have a video of the transaction, but Weisel testified that their records reveal that a Seiko watch was purchased at 5:00 p.m. on October 1, 2005, with a Capital One Visa credit card which turned out to be Ms. Meehan's. Meehan testified that defendant "was a contractor that [she] had hired to do construction on [her] house" and that he "had keys," to the house. He worked there "unsupervised." After learning of the fraudulent use of her Capital One credit card as a result of a call from its security department, she went to Lowe's to make further inquiry about the matter and called defendant and asked him to come to her house to talk about the subject. She suspected defendant "because there was a nail gun purchase on the card and he had been asking [Meehan] for a nail gun."
Meehan further testified that defendant blamed "a guy by the name of John" who did some "quick electrical or water hook up." At this point, Meehan called the Phillipsburg Police Department, and was referred to the Lopatcong Police. Patricia testified at trial that during the "booking process" defendant stated "[l]ook, I don't want to talk about it anymore. I knew this was coming. I just wish I had more time to prepare for it." Patricia testified that these comments were made voluntarily as defendant "was being booked," even though he had previously read defendant his Miranda*fn3 rights and defendant "denied any involvement," and that no questions had been asked before defendant made the statement. Patricia also testified about his observation of the "surveillance footage" taken at Lowe's, and that defendant had previously told him that he "recently dyed his hair."
When Ms. Meehan was called by the prosecutor, she testified that she then lived in Florida and had moved there earlier that year.*fn4 When she gave her former address in Phillipsburg, the following occurred:
THE COURT: Mr. Donegan [the prosecutor], Ms. Meehan is a neighbor of mine before she moved to Florida. I don't know her except to speak with her when I walk my dogs around the block, but we haven't been acquainted for six months?
THE WITNESS: Around that, I guess. We saw each other over the last six months, right.
THE COURT: And that's the extent of it. I mean, I do know this lady. I have no personal relationship with her at all except to exchange pleasantries.
MR. DONEGAN: Your Honor, that was brought to our attention last night, but because of our understanding of the nature of the contact the State didn't feel that it had any impact on The Court's decision. However, counsel may have a different position on this.
THE COURT: I'll just put that on the record, for whatever it's worth. You know, we all have neighbors.
MR. KEYS [defense counsel]: Judge, I was unaware of the conflict until just --potential conflict until right now.
THE COURT: Do you want to talk with your client about that for a moment?
MR. KEYS: I want to talk to my client and I would also like to talk to my deputy.
THE COURT: And your what?
MR. KEYS: I would also like to talk to -- to my boss.
THE COURT: Your boss?
MR. KEYS: About whether there's any institutional concerns that I need to address.
THE COURT: All right. Ms. Meehan, we'll be back at 1:30 and we'll continue then. All right? Be careful getting out of the witness stand, the steps are right behind you.
THE WITNESS: Okay, thank you
THE COURT: Counsel, don't go anywhere. Let me -- me be very brief and concise about my acquaintance with this witness. I didn't even know her name. I didn't know that was Ms. Meehan. I walk my dog every night and maybe once a week or twice a week I would see her in and about her home and I would speak with her. I knew she was moving to Florida. She has having renovations done on her home. So that's -- that's the extent of my acquaintance with the witness, so, you know, take it from there.
MR. KEYS: Judge --
THE COURT: I'll see you at 1:30.
MR. KEYS: Let me just lay out one of my other concerns then. You may have either seen Mr. Rodriguez previously or know Mr. Rodriguez previously because he was the person doing the renovations on her home. I don't know if that was what --
THE COURT: She had a lot of people. She had masons there, she had a lot of people there and she did a lot of work on the house and that's all. I do know that.
MR. KEYS: Thank you, Your Honor.
THE COURT: Does your client recognize me?
MR. KEYS: He does not.
THE COURT: 1:30.
After the luncheon recess. the defendant moved for a mistrial. The motion was developed as follows:
THE COURT: All right. Let's return to the record on HENRY [J.] RODRIGUEZ. At the conclusion of the last non-victim witness The Court recognized the victim when she arrived in court, did not know her name, but knew that she was a neighbor that I had encountered very informally when I walked my dog around the block on several occasions. I was not aware -- I didn't know who -- I didn't recognize the name so I didn't recognize her until she came to court. I don't know whether defense counsel was aware of the fact that she knew me or knew of me. Mr. Keys, have you had a chance to talk this over?
MR. KEYS: Your Honor, I have had a chance to talk this over with my client. Your Honor, at this point in time we would move for a mistrial. Let me lay out the --the specific grounds for the mistrial. It has nothing to do with Your Honor's conduct.
Your Honor, what concerns me is that the prosecutor knew about this last night. He could have notified the Court well before the first witness took an oath, could have notified The Court, and we could have dealt with this this morning. My concern here obviously is a fair trial. My concern is that the Court, although it does not know Ms. Meehan well, it knows that there was construction going on at her house, there was other activities relating to Ms. Meehan, including potentially her financial status. That was information that could be gleaned from knowing where she lives, how she lives, and this, as I stated in my opening, comes down to credibility. Your Honor, respectfully, I with heavy heart make a motion for a mistrial at this point in time. I have some concerns.
THE COURT: Let me -- let me ask you a question, Mr. Keys. If we had known about this on Monday, or had we known about this on Thursday, would you have made your motion to waive a jury trial?
MR. KEYS: Judge, what I would have done is I would have still requested a jury trial. I would have -- To be honest with you, I don't know what I -- In hindsight we can always say what we would have done in an ideal world. I don't know if I had moved to recuse Your Honor what judge would have been assigned. I'm assuming it would have been Judge Pfeiffer, but I don't know. I still would have moved for a jury trial -- I mean, Judge, a trial for the bench.
THE COURT: I want you to be more direct. Are you moving to disqualify me because of my knowledge of the victim or because of the prosecutor's failure to tell you these things?
MR. KEYS: Both.
THE COURT: Both. Okay.
MR. KEYS: And I want to place everything in context, Your Honor. I have nothing but the greatest deal of respect for Your Honor, your ability to be fair to both the State and the defense. My concern, however, is the sudden prejudices that we all harbor. Knowing a person in a proceeding sometimes we -- even when we try our best we can't set that aside. The Court obviously knows enough about Ms. Meehan to know that she's a neighbor, that there was construction going on at her house and that she was moving. And now that could just simply be from you noticed moving trucks at the end of the block, or something along that. But I don't want to make Your Honor a participant in this trial by -- in any manner. I do so with an incredibly heavy heart. I respectfully submit.
After hearing that the prosecutor "learned this information late last night" after "Ms. Meehan had flown in from Florida," the judge ruled:
THE COURT: Rule 1:12 provides a series of directions to judges as to when they must disqualify themselves either on their own motion or on the motion of the prosecutor or the defense. This particular case, as the State had opened trial and had called two witnesses and was about to call the victim, I sensed a familiar look but I just couldn't place it until she told me what her address was and it came together that she at one time had been a neighbor. I never knew her name, I knew her first name. You do meet people when you walk dogs. I don't know what to say about that. She did not have a dog, I did. Never said anything bad about my dog. I knew she was moving because she was having sidewalks put in, and new garage doors, and having her house painted. And then, you're right, the moving van did show up and she was gone, and I saw her the first time today.
I've never been an attorney of record to the witness. I've never given an opinion on the matter in question or the action. I have no interest in the outcome of this event. I see no reason why I could not be a fair and impartial judge of these facts, as I did not feel I couldn't be the last time I dealt with this.
My passing acquaintance with the victim does not influence me one way or the other. I feel I am competent to judge her credibility, as I would any other witness's credibility, although Mr. Donegan, there are no secrets in this business. As soon as something like that comes up you've got to tell somebody. It just doesn't get any better when it gets older. Even if it's midnight call him up and tell him, because there are no secrets in our -- our business anymore, except some the defense has and they're entitled to have. I will respectfully deny that motion, Mr. Keys.
The judge also denied defendant's motion for a new trial on the same ground, and added that "the evidence in this case was overwhelming, but particularly the evidence from the defendant himself, rather than the evidence from the [victim]." In denying the motion, the judge said:
THE COURT: Let me move with the traditional grounds for granting a new trial, and that would be the clear miscarriage of justice or injustice to the defendant. I have to begin with the security system which Lowe's department store has installed in their -- in their building. It enables the security people in that organization if a credit card is misused to trace every use of that credit card and coordinate it with a video tape of the person who is using that credit card. I never knew that and I'm sure that Mr. Rodriguez never knew that.
When Mr. Rodriguez was talking with Officer Patricia -- I remember this, I had my law secretary write it down -- when asked if he knew anything about the use of this credit card he denied any involvement in the transaction that had taken place. However, he did think that the purchase of the item at Lowe's, which was a Paslode nail gun, was a little suspicious because he had previously asked Jonnie Meehan to purchase that item some time ago. The Court reviewed the video tape and, sure enough, it was Henry Rodriguez using the credit card to buy this nail gun.
And if that wasn't enough, there was a second occasion where Mr. Rodriguez was using this woman's credit card to buy other implements which never arrived at the victim's home. Although the testimony of the victim was interesting, the key to Mr. Rodriguez's guilt was in his own words, not in the words of anybody else -- I had no involvement with  it. But, in fact, there is a video tape showing him being involved with it. Again, I'm sure he didn't know that. He knows it now.
. . . This court lives in a neighborhood where people move in and out. Ms. Meehan had moved in and moved out, and I did on occasion -- did not know her name, she was a neighbor, but not the neighbors in a Mr. Roger's sense. I never had tea with her or helped her take care of her dog, or cut her grass or take her garbage out. I would say hello to her when I passed her walking the dog. I don't know anything about her, I don't know anything about Mr. Rodriguez.
I did know that she was having work done on the house because it was newly-painted to that extent, but I had never been in the house. I didn't know her name. I didn't recognize her until I saw her and somebody said she lived on Burke Street and then I did recognize her.
I don't think it was required for me to recuse myself, and I -- I think about Mr. Keys' point, if I had known this in the beginning would I have recused myself? I don't think so, because my acquaintance with her was so passing that it had no effect upon me. And, in fact, her -- her testimony really was not the critical element in this case, as far as I was concerned. I don't know how quickly a prosecutor has to pass on evidence to defense counsel. It should be as quickly as possible, but it doesn't have to be at 12 o'clock at night or 6 o'clock in the morning. It can be on the next trial date, which is what happened here, I gather. And I'll give the prosecutor the benefit of the doubt that he did not know this until he was preparing for trial on the evening of trial with this witness and it came up.
For those reasons I will respectfully deny the motion for a new trial. Thank you.
We find no basis to upset the introduction of defendant's statements. See, e.g., State v. Barnes, 54 N.J. 1, 6-7 (1969), cert. denied, 396 U.S. 1029, 90 S.Ct. 580, 24 L.Ed. 2d 525 (1970) (Miranda protects only against "custodial interrogations"); State v. Cabrera, 387 N.J. Super. 81, 99-100 (App. Div. 2006) (statements to police not barred by Miranda if voluntarily made and not the product of coercion or official misconduct); State v. Mallozzi, 246 N.J. Super. 509, 515-16 (App. Div.), certif. denied, 126 N.J. 331 (1991) (booking procedures are ministerial in nature and beyond the right to remain silent).
We agree with the judge that the proofs were sufficient to sustain the convictions. State v. Reyes, 50 N.J. 454, 458-59 (1967). Given the timing of the purchases and use of the same Capital One credit card, the fact there was no surveillance camera at Sears does not require a different conclusion as to the transaction there.
We further find no basis on which to reverse the denial of a mistrial because the victim had lived in the judge's neighborhood. In that connection we note that the prosecutor did not know of that fact until the night before the witness testified after she arrived from her current residence in Florida, and the judge (and parties) had no reason to expect further interaction between them in the neighborhood.*fn5
Defendant does not dispute that the judge did not recognize the victim's name or realize that she had been a neighbor when he accepted defendant's waiver of his right to a jury trial and before she took the stand. Accordingly, we can find no abuse of discretion. See State v. McBride, 213 N.J. Super. 255, 273-74 (App. Div. 1986), certif. denied, 107 N.J. 118 (1987) (in a jury trial, "[t]here was no necessity for the trial judge to have disqualified himself, since his prior contact with the victim was so slight as to preclude any legitimate claim of bias"); see also State v. Sherman, 367 N.J. Super. 324, 358 (App. Div.), certif. denied, 180 N.J. 356 (2004) (judge's residence in a community where a crime occurred does not require recusal in plea case). Whether a judge should disqualify himself or herself is a matter within the sound discretion of the judge, and there has been an insufficient showing of any abuse by the judge. Jadlowski v. Owens-Corning, 283 N.J. Super. 199, 221 (App. Div. 1995) , certif. denied, 143 N.J. 326 (1996). Nor is a reversal warranted based on the prosecutor's handling of the disclosure. See, e.g., State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987).