April 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IRVING ALICEA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-03-0522.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 1, 2009
Before Judges Waugh and Ashrafi.
Defendant Irving Alicea appeals his conviction for one count of third-degree shoplifting, N.J.S.A. 2C:20-11(b)(2). Shoplifting is a third-degree offense when the value of the property involved exceeds $500 but is less than $75,000.
N.J.S.A. 2C:20-11(c)(2). He was sentenced to a five-year term of incarceration, in addition to the required fines and penalties. On appeal, Alicea challenges the jury charge with respect to the valuation of the goods he was accused of stealing, arguing that the judge should have molded the facts to the law in the charge. We disagree and affirm.
We glean the following facts from the record. Hernan Castano was a store detective at the Macy's department store in the Paramus Park Mall on December 23, 2004. At about 9:20 p.m., Castano was walking in the young men's department. He received a radio transmission from a security manager, who told him that a person, later identified as Alicea, tried to go into the fitting room but refused to have his items counted. The customer then left the fitting room, but continued to shop. Castano found the behavior suspicious because customers do not ordinarily refuse to have their items counted.
The manager told Castano what the man was wearing and also that he was carrying a Gap shopping bag. As Castano began to walk towards the area, he met up with Luis Jimenez, another detective, and they found Alicea. Castano observed that Alicea had a few items over his left arm and was carrying the Gap bag in his right hand. Castano was able to see a bit of aluminum foil sticking out of the Gap bag. At that point, the bag appeared to be flat and light.
Castano testified that such a bag is known as a "booster bag," which is a method shoplifters employ when they put merchandise in a bag. They line it with aluminum foil. When they walk by the door the alarm won't go off. The signal will be interrupted by the aluminum foil.
They could walk out of the store and we would never - the alarm would never go off.
Castano watched Alicea select items for about five minutes. He went into a fitting room and cleaned it out for Alicea's use. When Alicea went into a fitting room with approximately fifteen items, Castano was able to see and hear him breaking off the sensor tags. He also saw Alicea drop the pliers he was using.
The bag was open on the floor and Castano was able to see that it was totally lined with aluminum foil. Castano saw Alicea fold the items and put them into the bag. Some of the items still had sensor tags. Alicea then picked up some of the debris and put it in the pocket of a pair of pants. When Alicea came out of the fitting room, he went to the register and put two or three items down and told the worker that he "didn't want these items."
After Alicea left the fitting room, Jimenez followed him while Castano went into defendant's stall and checked all the tags and other debris he had left behind. Jimenez informed Castano that Alicea was walking towards the cosmetics department. Alicea passed seven to eight cash registers, but did not attempt to pay for the bag of merchandise he was carrying.
Castano followed Alicea to the exit, where he left the store and entered the main part of the mall. Castano and Jimenez stopped Alicea and handcuffed him. They brought him back into the store to the security office.
The prices of the items taken by Alicea were determined by running each item through a computer in the security office. A number (called the SKU number) was fed into the computer and the price of the item registered. Altogether there were eight items in the bag and their total price was $636.
At trial defense counsel pointed out that the surveillance video shown to the jury reflected that numerous items were on sale, arguing that the SKU number may not have been the accurate price for that day. Castano testified that the SKU numbers were updated daily, so they would indicate any sale price if one was applicable that day.
On appeal, Alicea raises the following issue:
INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE AND FAILED TO DISCUSS WHATSOEVER THE DEFENSE POSITION OF COST OF THE GOODS AT THE TIME OF THE SHOPLIFTING, 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).
In applying the plain error standard of Rule 2:10-2 to our review, we must assure ourselves that defects in the charge did not include any consequential defects. We review the jury charge as a whole in order to determine its overall effect. State v. Vasquez, 374 N.J. Super. 252, 263 (App. Div. 2005). In so doing, we have found nothing "sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Ibid. Indeed, we discern no problem whatever with the charge.
The judge charged the jury according to the Model Jury Charges and he did so without objection. He clearly instructed the jury that, if they determined that Alicea was guilty of shoplifting, they would then have to determine the value of the goods taken. He explained that there were four categories for them to choose among: (1) $75,000 or more; (2) more than $500 but less than $75,000; (3) at least $200 but not more than $500; and (4) less than $200. He also explained that the amounts at issue were to be calculated using the "full retail value," which he defined as "the merchant's stated or advertised price of the merchandise." The instruction was clear and easy to understand.
Citing numerous cases in which the molding of the facts of the case to the law in the charge was deemed necessary, Alicea argues that the trial judge should have molded the facts to the law in this case. We disagree. In a case, such as the one before us, in which both the factual issue to be determined and the law to be applied are relatively simple, such molding is simply not required. State v. Robinson, 165 N.J. 32, 42-43 (2000) ("That requirement has been imposed in various contexts in which the statement of relevant law, when divorced from the facts, was potentially confusing or misleading to the jury."); State v. Rambo, 401 N.J. Super. 506, 525 (App. Div.), certif. denied, 197 N.J. 258 (2008). The factual issue, i.e., whether the SKU number accurately reflected that day's sale prices, was more than adequately framed by counsel during their summation. There was no need for the trial court to outline it in the charge.
For the reasons stated above, we affirm Alicea's conviction for shoplifting as a third-degree crime. N.J.S.A. 2C:20-11(c)(2).
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