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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...