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State v. Joseph

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 12, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TESSY JOSEPH, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, M.A. 2006-080.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 2, 2008

Before Judges Messano and Chambers.

Defendant Tessy Joseph appeals her conviction of shoplifting a belt and dress pants from the Neiman Marcus store in Millburn in violation of N.J.S.A. 2C:20-11(b)(2), a disorderly persons offense. For this offense, the municipal court judge imposed a sentence of ten days of community service, a $500 fine, court costs of $34, a $50 VCCB Assessment and a $75 SNSF Assessment. Defendant took a de novo appeal to the Law Division. In a written opinion dated July 20, 2007, the Law Division judge found defendant guilty of the shoplifting charge and imposed the same fines, costs, and assessments as the municipal court judge, but reduced the period of community service to twenty-five hours. This appeal followed.

On appeal, defendant raises the following issues:

POINT I

EVIDENCE FAILS TO ESTABLISH BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS GUILTY OF THE OFFENSE OF SHOPLIFTING.

POINT II

FAILURE BY THE STATE TO PROVIDE RELEVANT VIDEOTAPE EVIDENCE IN RESPONSE TO DISCOVERY REQUEST CONSTITUTES A DISCOVERY VIOLATION AND VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS PURSUANT TO BRADY V. MARYLAND, 373 U.S. 83 (1963).

POINT III

THIS CASE MUST BE DISMISSED AND NOT REMANDED FOR RETRIAL.

Defendant contends that the charges should be dismissed because at the time of the incident the store had placed defendant under videotape surveillance, but the defense did not learn of the existence of a videotape until the store's investigator testified at trial. The record indicates that the State had also been unaware of the existence of the videotape until the day of the trial. The investigator testified that the videotape would show defendant on the store floor but would not cover defendant's conduct in the dressing room where defendant allegedly placed the items in her bag. Defense counsel rejected the municipal judge's offer of a recess or an adjournment in order to give the defense an opportunity to view the tape. We agree with the Law Division judge for the reasons expressed in his written opinion that these facts do not constitute a Brady violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963) (requiring the government to disclose to a criminal defendant favorable evidence on guilt or punishment), because there is no evidence that the videotape contained exculpatory evidence, the State did not withhold the evidence since it also was unaware of its existence until the day of trial, and defense counsel was given an opportunity to review the videotape before the case proceeded any further and declined to do so.

Appellate review of municipal court convictions is exceedingly narrow. State v. Locurto, 157 N.J. 463, 470 (1999). We do not weigh the evidence or assess the credibility of the witnesses, as the Law Division does in its de novo review. Id. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1998)). Rather, we must determine whether the findings by the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Further, the findings of guilt in this case have been made by both the municipal court and the Law Division. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Id. at 474.

In light of this standard and after a careful review of the record, we affirm for the reasons set forth by the trial judge in his thorough and sound written decision and find adequate proof in the record to support the finding of guilt.

Affirmed.

20080912

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